^ 
 
 .N* 
 
A WORLD COURT 
 
 IN THE LIGHT OF 
 
 THE UNITED STATES SUPREME COURT 
 
WORKS BY THE AUTHOR. 
 
 Some facts about Alsace and Lorraine, 1895. 
 
 The Brooke Family of Whitchurch, Hampshire, England, 
 
 together with an account of Acting-Governor Robert Brooke 
 
 of Mar>'land and Colonel Ninian Beall of Maryland, 1899. 
 The Alabama Arbitration, 1900. 
 fimeric Cruc(5, 1900. 
 The Alasko-Canadian Frontier, 1902. 
 The Alaska Frontier, 1903. 
 The English Ancestors of the Shippens and Edward Shippen 
 
 of Philadelphia, 1904. 
 The Swift Family of Philadelphia, 1906. 
 Balch Genealogica, 1907. 
 
 L'fivolution de I'Arbitragc International, 1908. 
 La Baie d'Hudson, est elle une mer libre ou une mer ferm^ 
 
 1911 ? 
 La Baie d'Hudson est une grande mer ouverte, 19 13. 
 Diffcrends juridiques et politiques dans les rapports des 
 
 Nations, 1914. 
 "Arbitration" as a term of International Law, 1915. 
 The Influence of the United States on the Development of the 
 
 Law between Nations, 19 15. 
 Legal and Political International Questions and the Recurrence 
 
 of War, 1916. 
 The Philadelphia Assemblies, 19 16. 
 
A WORLD COURT 
 
 IN THE LIGHT OF 
 
 THE UNITED STATES SUPREME COURT 
 
 THOMAS WILLING BALCH 
 
 L. H. D., Trinity College 
 
 Member of the Philadelphia Bar 
 
 A Vice-President of the Historical Society of Pennsylvania 
 
 Philadelphia 
 
 ALLEN, LANE AND SCOTT 
 1918 
 
• o"^ 
 
 Copyright. 1918, by 
 
 /I. 1 J' 
 C'f/.jL-* ' THOMAS WILLING BALCH 
 
 ^p 
 
TO 
 MY MOTHER 
 
 372971 
 
INTRODUCTION. 
 
 HUMANITY has long sought to ward off the 
 ravages and burdens that resiolt from war. 
 The lake dwellers of Switzerland tried to protect 
 themselves against the attack of strangers by build- 
 ing their dwellings above the water on piles far from 
 the shore. The Romans, at the height of their 
 prosperity, built a line of fortifications, Limes 
 Imperii Romani, from the Rhine to the Danube. 
 Those fortifications, inside of which were the medici- 
 nal springs of the Taunus region, served against the 
 barbarians of the north as the connecting link 
 between those two rivers that were the northern 
 boulevards on the continent of Europe of the Roman 
 Empire. The Chinese Empire built a long wall ex- 
 tending from the sea inland, for hundreds and hun- 
 dreds of miles, to keep out the barbarians of the 
 north of Asia. The feudal barons of Europe, as for 
 instance the lords of Coucy-le-Chateau or Pierre- 
 fonds in northern France, built great castles, whose 
 strong walls and high towers afforded them and 
 their retainers and peasants protection against 
 unexpected attack, and also allowed them to levy- 
 tribute upon the surrounding lands and any mer- 
 
2 A WORLD COURT IN THE LIGHT OF 
 
 chants that ventured within their territory. The 
 burghers of the Middle Ages surrounded their cities 
 with great walls and moats, such as those around the 
 cities of Numberg in Germany and Aiguesmortes 
 in southern France, to protect their lives and prop- 
 erty against attack and to hold guard upon the 
 surrounding fields from where they drew their food. 
 More recently, Nations have built forts about 
 their frontier towns to check the advance of a 
 hostile army; and in one notable case at least, 
 the northeastern front of France, the whole of one 
 frontier was literally fortified with a chain of forts 
 to aid in repelling invasion. Nations have built 
 great fleets of war vessels. Thus Venice, the United 
 Netherlands, and England have built and main- 
 tained great fleets for the double purpose of wardmg 
 attack from and of safeguarding the commerce of 
 their respective countries, and in the case of Great 
 Britain of assuring in addition the food supply of the 
 Nation. And now the Nations have constructed 
 great fleets of serial war crafts as an adjunct to their 
 military establishments on land and sea for purposes 
 of attack and defense. 
 
 In each of these cases the main object was the 
 same; to afford both a safeguard against attack and 
 invasion of the home, whether that home was a 
 
THE UNITED STATES SUPREME COURT. i 
 
 small wooden house built above a lake, a strong 
 stone castle, a prosperous city, or the land of a 
 great Nation; and also often at the same time a 
 safe vantage point from which, combined with the 
 requisite mobility, the inhabitants could sally forth 
 to attack strangers to seize upon their wealth. 
 
 Within the last half century, however, humanity 
 has turned its attention seriously to developing an 
 additional way of warding off war. Ever since the 
 judicial settlement of the Alabama Claims by the 
 Geneva Tribunal in 1872, both governments and 
 peoples have sought more and more to perfect the 
 international judicial machinery by which, for the 
 settlement of differences arising between Nations, 
 they woiild call to their aid jural customs and rules 
 interpreted by International Courts of Justice set 
 up ad hoc. As a residt of the call in 1898 of the 
 Emperor Nicholas the Second, for the meeting of 
 the First Hague Peace Conference in 1899, new 
 impetus was given to the efforts to avoid war 
 between the Nations by a resort to legal means. 
 In the first place, provision was made in the legis- 
 lation enacted by that Conference, in which twenty- 
 six of the Nations of the world took part, to facilitate 
 the use of good offices and mediation as means to 
 smooth over the difficulties that arise between 
 
4 A WORLD COURT IN THE LIGHT OP 
 
 Nations and which they fail to settle by ordinary 
 diplomatic intercourse. In addition, however, the 
 Conference of 1899 made provisions to facilitate the 
 establishment ad hoc of International Courts of 
 Justice, such as the Geneva Tribunal of 1871-72 
 that judged the Alabama Claims, and the Paris 
 Tribunal of 1893 that decided the Bering Sea Fur 
 Seal fisheries, to judge causes of difference arising 
 between the Nations instead of allowing the dis- 
 puting powers gradually to drift, sooner or later, 
 into war. 
 
 The Conference of 1899 provided for a panel of 
 eminent men, jurists learned in the Law between 
 Nations, from whom two disagreeing Nations could 
 readily constitute an International Tribunal to tr>' 
 the cause of difference between the disputing powers, 
 so soon as the latter had decided to refer their 
 dispute for solution to an International Court of 
 Justice for a judicial decision.' The Second Hague 
 Peace Conference of 1907, at which forty-four of 
 the Nations were represented, perfected the machin- 
 ery for the calling into being of International Judicial 
 Tribunals, appointed ad hoc, and the American 
 delegation proposed the establishment of a Supreme 
 
 ' A. Pcarcc Higgins: Thf Hague Peace Conferences, Cambridge 
 University Press, 1909, page ub cl stq. 
 
THE UNITED STATES SUPREME COURT. 5 
 
 Court of the World, to be modelled largely upon the 
 Supreme Court of the United States of America. 
 
 The Second Hague Conference made improve- 
 ments in the manner of constituting ad hoc Inter- 
 national Tribunals to try cases of discord arising 
 between the Nations. But owing to the refusal of 
 the Powers to agree to the establishment of an 
 International Court composed of a small number of 
 judges, fifteen in number for example, unless each 
 Power was represented upon the Court in the 
 person of a judge, the idea of a Supreme Court of 
 the World sitting in judgment above forty-four 
 Nations, as the Supreme Court of the United 
 States sits upon the forty-eight member States of 
 the North American Union, failed of realization. 
 
 Since that time the advocates of the establish- 
 ment of a Supreme Court of the World have argued 
 that the appointment of judges of The Hague 
 International Courts to try single cases, does not 
 create in the personnel of such temporary and 
 quickly disappearing Tribunals, that esprit de corps 
 and absolutely fearless independence of the pres- 
 sure of outside public opinion which are so abso- 
 lutely necessary, except in the case of an excep- 
 tional man, in order to obtain judicial judgments 
 based upon the Law instead of political compro- 
 
6 A WORLD COORT IN THE LIGHT OF 
 
 mises based upon diplomatic needs and ends. And 
 the advocates of a Supreme Court of the World 
 composed of a small number of jurists appointed 
 for life, maintain that in that way, the existence of 
 the Tribunal, through the life tenure of its mem- 
 bers, will be continuous like that of any regularly 
 constituted Municipal Court with Ufe tenure. And 
 that consequently, there will be ehminated from 
 such an International Supreme Court the desire to 
 arrive in formulating its opinion at a compromise 
 which will satisfy both parties, and that decisions 
 will be secured based strictly upon legal rather 
 than upon political or diplomatic grounds. 
 
 Happily, to test in a measure through concrete 
 experience what may be expected from a Supreme 
 Court of the World if once set up, we have an 
 analogous example in the Supreme Court of the 
 United States of America. Let us examine in how 
 far that great Court, set up above a number of 
 banded States that had been originally sovereign and 
 that still retain much of their original sovereignty, 
 has succeeded in settling in peace through its deci- 
 sions the conflicting claims of the various States of 
 the North American Union, at the beginning 
 thirteen, now forty-eight in number. 
 
THE UNITED STATES SUPREME COURT. 
 
 PART I. 
 
 When the thirteen colonies revolted in 1775 
 against the mother country, and then in July, 1776, 
 proclaimed their independence as free, sovereign 
 and independent States, they sought to add, and 
 were successful in their purpose, thirteen members 
 to the family of Nations. Owing to the exigencies 
 of the war, they found it necessary to perfect the 
 loose bond of common opposition to the dictates of 
 Great Britain that united them at first into a more 
 firm alliance, which shoiild preclude the possibil- 
 ities of their falling out with one another. Accord- 
 ingly, the Articles of Confederation were drawn up 
 and agreed to by the thirteen States. Before the 
 colonies had broken with the mother land, a 
 fruitful cause of trouble and jealousy between 
 the colonies had been the uncertainty as to the 
 boundaries dividing them. Some of these disputes 
 over the frontier line between two colonies had 
 been settled by some form or other of judicial 
 appeal. 
 
 For instance, back in 1650, the Dutch colony 
 of New Netherland, and the English colonies of 
 New Haven and Connecticut, who for a number 
 
8 A WORLD COURT IN THE LIGHT OP 
 
 of years previously did not agree as to the fron- 
 tier which separated the Dutch and the English 
 possessions in North America, as well as con- 
 cerning the manner of regulating various matters 
 that had arisen between the settlements of the 
 two nationalities, agreed, largely upon the initia- 
 tive of Governor Peter Stuyvesant of Amsterdam 
 in New Netherland,^ to refer their dispute to 
 a board of adjudication. This board, which con- 
 sisted of two members appointed by the colony of 
 New Netherland and two named by the colonies of 
 New Haven and Connecticut, met in Connecticut, 
 September 19th, 1650. The four members of this 
 board signed a provisional agreement which regu- 
 lated as fairly as possible for both sides the questions 
 of minor importance, such as that of reciprocity 
 concerning the exchange of prisoners fleeing from 
 justice. In that agreement the Board of Adjudi- 
 cation also agreed upon a provisional frontier line 
 which was to divide the possessions of the Hollanders 
 and the English upon Long Island as well as upon the 
 main land. The colonies of both countries, New 
 Netherland and New Haven and Connecticut, as well 
 
 ' For the correctness of these names, the author is indebted to the 
 learned librarian of the New York Historical Society, Mr. George 
 Kelby. 
 
THE UNITED STATES SUPREME COURT. 9 
 
 as all of their subjects were to recognize that line 
 until the United Netherlands and England in Europe 
 had agreed upon a final and complete settlement of 
 the frontier line. The agreement was in the nature 
 of a modus vivendi merely, since it was to hold 
 good only until it had been ratified, or rejected 
 by the two motherlands. Still it was not only 
 a settlement, so far as the colonies concerned had 
 the power, by means of a quasi-covut, but also it 
 was an appeal from the colonies for a final settle- 
 ment of the questions at issue to the home govern- 
 ments on the other side of the Atlantic. Before 
 the matter could be taken up by the two govern- 
 ments in Evu"ope, however, the United Netherlands 
 and England were again plunged in a European 
 war, one of whose results was the annexation by 
 the English Crown of the colony of New Nether- 
 land. Nevertheless, as early as the middle of the 
 seventeenth centiuy, the differences over the bound- 
 ary between the Dutch colony of New Netherland 
 and the two English colonies of New Haven and 
 Connecticut in North America, were adjusted in a 
 peaceful manner for a period of several years by a 
 mixed commission of representatives of the two 
 contending nationalities. This historic event, of 
 course, was well known to the delegates of New York 
 
10 A WORLD COURT IN THE LIGHT OP 
 
 (the successor of New Nctherland) and Connecticut 
 in the Constitutional Convention.^ 
 
 The thirteen colonies were practically, owing to 
 llic lack of communication through the virgin forest, 
 thirteen distinct settlements or commonwealths, 
 separated from one another by the wilderness, and, 
 through their commerce and their political relations, 
 were in closer touch with the mother country than 
 they were with one another. 
 
 In addition, in colonial times, a custom gradually 
 arose among the English speaking North American 
 colonies to refer, sooner or later, their conflicting 
 boundary claims, either to the King in Council or 
 to commissions appointed by the Crown. This 
 manner of carr>'ing the boundary disputes of the 
 colonies to the final judgment of the sovereign 
 aided by his privy council or a commission of his 
 appointment for each case resulted no doubt from 
 the fact that the King in Council was the bond of 
 union not only between England and her colonies 
 but also between each one of the colonies and one 
 and all of the other colonies. In other words, the 
 relations of the colonies to one another and to the 
 
 * Ebcnezcr Hazard: SlaU Papers, Philadelphia, 1794, Volume II., 
 pages 154-173. — Charles J. Hoadly, Rrcords of the Colony and Pliinl<j- 
 lion oj New Uaven, 1638-1649, Hartford, 1857, pages 507-536. 
 
THE UNITED STATES SUPREME COURT. 11 
 
 motherland through the sovereign and his privy 
 council, caused the colonies to look to the King 
 in Council, as a supreme arbiter or tribunal to decide 
 the boundary disputes between the several colonies. 
 
 In Campbell vs. Hall, a case decided in 1774 in the 
 King's Bench, Lord Mansfield said that it was the 
 Law that, h propos of the colonies, the King in 
 Council cotdd not go "contrary to fundamental 
 principles."* 
 
 The most important of these boundary cases 
 between the colonies which was settled by an appeal 
 to the English King and his Privy Council, was the 
 disputed frontier between Pennsylvania and Mary- 
 land. '^ In its origin the case went back to the time 
 when Charles the Second made his grant to Penn of 
 territory for a colony in North America. The dis- 
 pute over the true boundary between the grants to 
 Penn and Baltimore was carried on first by the 
 original disputants and then by their successors. 
 The King in Council was appealed to on more than 
 
 * Cowper's Cases in the Court of King's Bench, London, 1800, 2nd 
 edition. Volume I., page 209. 
 
 * Pennsylvania Archives, edited by John B. Linn, and William H. 
 Egle, Second Series, Volume VIL, Harrisburg, 1878; Ibid, edited by- 
 William H. Egle, Second Series, Volume XVL, Harrisburg, 1890. — 
 Charles Penrose Keith: Chronicles of Pennsylvania, 1688-1748, 
 Philadelphia, 191 7, pages 5-59. 
 
12 A WORLD COURT IN THE LIGHT OP 
 
 one occasion. Finally, on May the loth, 1732, the 
 Lord Baltimore of that day made a formal and 
 written agreement with John, Thomas and Richard 
 Pcnn providing how the boundary line between the 
 landed possessions of the Baltimores and the Penns 
 should be run. That however did not finally decide 
 the matter, as the two parties still disagreed. There 
 were disorders on the frontiers between the lands 
 possessed by the adherents of the Penns and the 
 Baltimores. A modus vivendi between the respective 
 proprietors was arranged by the Lords for Trade and 
 Plantation, and subsequently on May 25th, 1737, the 
 King in Council issued an order for the execution of 
 this temporary settlement without prejudice to either 
 party. As owing to the residence of the Lords 
 Proprietors in England, they were within the juris- 
 diction of the judicial tribunals of England, the 
 King and his Privy Council agreed meanwhile to a 
 plan whereby the Lord Proprietor of Pennsylvania 
 should bring suit in the Court of Chancery against 
 the Lord Proprietor of Maryland for the specific per- 
 formance of the agreement of May loth, 1732, the 
 settlement of their mutual boundary lines, and the 
 confirmation of title to the land. The Penns filed 
 in June, 1735, a bill in equity to compel specific 
 performance of the agreement. The decision of 
 
THE UNITED STATES SUPREME COURT. 13 
 
 the Court was to be enforced by an Order in 
 Council. Accordingly, the important case known 
 as Penn vs. Lord Baltimore, was heard and adjudi- 
 cated in the Court of Chancery by Lord Chancellor 
 Hardwicke. 
 
 After careful argiunent and consideration, the 
 case was decided in favor of the claims of the Penns 
 in behalf of Pennsylvania as against those of the 
 Baltimores for Maryland. To enforce the judg- 
 ment of the Court of Chancery, an Order in Council 
 in accord with the decision was issued to uphold 
 the legal right of Pennsylvania to exercise her 
 jurisdiction throughout the territory in dispute. 
 This great judicial contest which was submitted 
 through the King in Council to the English Court 
 in Chancery was doubtless well known to the 
 representatives of Pennsylvania, Maryland and 
 Delaware who sat in the Federal Convention, as 
 well as to other members of the body. 
 
 There were other cases of conflicting boundaries, 
 arising between the colonies, where an appeal was 
 made to the King in Council. For example, Con- 
 necticut in 1754, consulted William Murray, then 
 attorney-general of England, afterwards the cele- 
 brated Lord Mansfield, whether an agreement 
 entered into by Connecticut with Massachusetts in 
 
14 A WORLD COl'RT IN THE LIGHT OF 
 
 1713 concerning their common boundary line would 
 be set aside by a commission appointed by the 
 Crown. And it was the attorney-general's opinion 
 that after a lapse of more than forty years, the 
 Crown would not help to set aside an agreement 
 in which the two provinces had voluntarily joined 
 defining their mutual frontier. 
 
 In 1754, two generations and a half after Charles 
 the Second's grant to Penn of Pennsylvania, which 
 grant Penn had reinforced and consummated by 
 actually occupying the province through the estab- 
 hshment of settlements within its bounds, a move- 
 ment started among the people of the colony of 
 Connecticut to occupy and settle — regardless of the 
 proprietary rights of Penn and his successors under 
 the grant from King Charles the Second — upon 
 some of the lands along the east branch of the 
 Susquehanna River. In 1754, the Susquehanna 
 Company, which was composed of Connecticut 
 people, purchased from "the Five Nations of 
 Indians called The Iroquois" for the sum of two 
 thousand pounds of the money current in the 
 colony of New York, lands on the Susquehanna 
 River between the 41st and 43rd degrees of north 
 latitude. The grant conveying title from the 
 Iroquois to the Susquehanna Company was signed 
 
THE UNITED STATES SUPREME COURT. 15 
 
 Jtdy nth, 1754.® The Connecticut colonists based 
 their rights to settle along the Susquehanna, in 
 what became known as the Wyoming Valley, upon 
 the ground that Connecticut stretched westward to 
 the Pacific Ocean, always excepting the territory 
 that belonged to the intervening colonies of New 
 York and New Jersey. It was not, however, until 
 1763, that people from Connecticut settled in the 
 Wyoming Valley. As might naturally be supposed 
 this appropriation by Connecticut settlers of lands 
 that came within the grant to William Penn, with- 
 out consulting the proprietors of Pennsylvania, led 
 to a dispute first in words, then in deeds, which 
 ultimately resulted in a state of war on a small 
 scale between the people of Pennsylvania and the 
 Connecticut settlers or intruders as they were called 
 by the Pennsylvanians. In the beginning, the 
 Colony of Connecticut did not countenance the 
 claims of the Susquehanna Company, and did not 
 recognize in any way that the town of Westmore- 
 land in the Wyoming Valley was an integral part 
 of the colony of Connecticut. But owing to the 
 determined opposition of the proprietors of Penn- 
 sylvania to the Connecticut settlers, the Assembly 
 
 " Original manuscript in the collection of the Historical Society 
 of Pennsylvania, Connecticut Claims Papers. 
 
16 A WORLD COURT IN THE LIGHT OP 
 
 of Connecticut, after consulting eminent counsel in 
 England, decided on October 2nd, 1773,^ to extend 
 its jurisdiction "to those lands contained within 
 the Limits and Bounds of the Charter of this Colony 
 Westward of the Province of New York." 
 
 With that object in view, Connecticut sent a 
 committee of three. Colonel Dyer, Dr. Johnson and 
 Jedediah Strong, to Philadelphia to treat with John 
 Penn, the Proprietary Governor of Pennsylvania.* 
 Governor Penn told the gentlemen from Connec- 
 ticut that there was no need to negotiate as to the 
 boundaries of Pennsylvania and Connecticut. He 
 maintained that the western bounds of Connecticut 
 had been settled "about two years after the Date 
 of their Charter, under the authority of a Royal 
 Commission, and solemnly assented to, ratified and 
 confirmed by the Governor and Commissioners of 
 their own Colony; that, after this Settlement, the 
 Grant of Pennsylvania was made to William Penn, 
 and that it was not understood at that time by the 
 Crown, nor by the Grantee, William Penn, nor by 
 any other persons since so far as he had heard, that 
 
 ^ Pennsylvania Archives, second series, edited by William H. Egle, 
 Harrisburg, 1890, Volume XVIII., page 170. 
 
 * Tlif Public Records of the Colony of Coiinfclicul, edited by Charles 
 J. Hoadly, Hartford, 1887, page 161. 
 
THE UNITED STATES SUPREME COURT. 17 
 
 the said grant any way intrenched upon or 
 approached near, any of the New England grants, 
 till the late claim was set up on the part of Con- 
 necticut."" Governor Penn refused to join in an 
 application to the Crown for the appointment of 
 commissioners as Connecticut wished to review and 
 decide the boundaries between them, "because that 
 would be admitting what he totally denied," to wit, 
 that the territorial claims of Pennsylvania and Con- 
 necticut in any way conflicted. Governor Penn main- 
 tained "that His Majesty in Council, was the only 
 proper and constitutional Tribunal for a Decision of 
 this kind. " As he was anxious to have the difficulty 
 brought before that Covirt for settlement, if the 
 Colony of Connecticut would not take an appeal of 
 the question to the King and His Privy Council, he 
 would himself invite, Penn said. His Majesty King 
 George to take the matter under consideration. 
 
 The more the dispute grew in importance, the 
 more notice it attracted. The Rev. William Smith, 
 Provost of the University of Pennsylvania,''' wrote 
 
 ^Pennsylvania Archives, second series, edited by W. H. Egle, 
 Harrisbiirg, 1890, Vol. XVIII., page 171 el seq. 
 
 '"William Smith, D. D.: An Examination of the Connecticut Claim 
 to lands in Pennsylvania, 1774; Pennsylvania Archives, second series, 
 edited by W. H. Egle, Harrisburg, 1890, Volume XVIII. , pages 125-214. 
 
18 A WORLD COURT IN THE LIGHT OF 
 
 an essay in support of the rights of Pennsylvania, 
 and Roger Sherman Ukewise used his pen to main- 
 tain the claims of Connecticut." 
 
 On the i6th of February, 1775, the Proprietors of 
 Pennsylvania, once more as on several occasions in 
 former years, addressed "To the King's most 
 excellent Majesty in Council" a petition in which 
 they examined the question in dispute in detail.'* 
 They stated and presented once more much evidence 
 that on previous occasions they had submitted to the 
 King and the Privy Coimcil in support of the grant 
 to Perm and against the Connecticut claims to the 
 Wyoming lands. 
 
 Then the petitioners referred to the fact that at 
 the time Charles the Second granted to Penn the 
 charter of Pennsylvania, Connecticut made no 
 objection to the granting of the charter, nor did 
 Connecticut lay claim to lands west of New York 
 and New Jersey until "about the year 1755 when it 
 was pretend**" that under the Connecticut charter, 
 the Connecticut people "had a right to skip over 
 
 " Roger Sherman in John Sanderson's Biography of Ike signers of 
 the Declaration of Independence, Philadelphia, 1823, Volume III., 
 pages 340-348. 
 
 '* Manuscript in the collections of the Historical Society of Penn- 
 sylvania: Penn MSS., Connecticut Claims. 
 
THE UNITED STATES SUPREME COURT. 19 
 
 New York and New Jersey, " and to claim the extent 
 of the latitude of Connecticut westward all the way 
 to the Pacific Ocean or South Sea as it was then 
 called. In that way the Connecticut people would 
 take away one-third of the land that Charles the 
 Second had granted to William Penn. Many other 
 pertinent facts were presented in support of the 
 claims of the Proprietors of Pennsylvania to the 
 Wyoming Valley lands. The petition finished by 
 praying His Majesty the King to declare that 
 Connecticut was bounded on the west by the 
 Province of New York. 
 
 Then as the struggle between the thirteen English 
 colonies and their mother country developed, and 
 the possibility of Pennsylvania appealing the Wyom- 
 ing controversy to the King in Council passed 
 away, Pennsylvania brought that dispute to the 
 notice of the Continental Congress. 
 
 On September 30th, 1775, the Assembly of 
 Pennsylvania discussed "the Intrusion of a Num- 
 ber of People into this Province, under a pretended 
 Claim of the Colony of Connecticut, to the great 
 Annoyance of the good People of this Province," 
 and instructed the Pennsylvania delegates in the 
 Continental Congress, which was sitting in 
 Philadelphia in the Pennsylvania State House, 
 
20 A WORLD COURT IN THE LIGHT OF 
 
 to bring the dispute to the attention of the 
 Congress." 
 
 Accordingly in the early days of October, 1775, 
 Ross of the Pennsylvania delegation in the Con- 
 gress, presented to the latter body this resolution 
 of the Pennsylvania Assembly. John Rutledge of 
 South Carolina moved that the papers should be 
 referred to the delegates of the two colonies. 
 Thomas Willing, one of the Pennsylvania delega- 
 tion and also a Justice of the Supreme Court of 
 that Province, pointed out that the delegates 
 of the two colonies were interested parties to the 
 controversy and said that they would need an 
 umpire to reach a settlement. Roger Sherman, 
 a Connecticut delegate, thought the two dele- 
 gations might be able to agree on a temporary 
 line.'* 
 
 After the delegations of the two States, to whom 
 Congress had submitted the matter, could not 
 come to an agreement concerning the question, the 
 whole matter was referred to a committee consist- 
 ing of Rutledge, Chase, Jefferson, Kinsey and 
 
 '* Voles and Proceedings of the House of Represenlaiives of the Prov- 
 ince of Pennsylvania, Philadelphia, 1776, Volume VI., page 619. 
 
 '^ John Adams: Works, Boston, 1850, Volume II., page 465. 
 
THE UNITED STATES SUPREME COURT. 21 
 
 Hopkins.^' As time passed, the people of Penn- 
 sylvania and the Connecticut intruders came to 
 blows and blood was shed. On December 20th, 
 1 775 1 Congress decided that the contending parties 
 should at once stop all hostilities, "until the dis- 
 pute can be legally decided."^'' Finally, as the result 
 of the ill feeling engendered, troops had to be sent 
 to the seat of trouble to keep the peace between 
 them.^'' Owing to the war with Great Britain, 
 however, these troops were soon ordered to join 
 General Washington and the Wyoming colonists 
 found themselves left on the frontier to reptdse an 
 attack of the English and the Indians. 
 
 When the war for independence started, besides 
 the Pennsylvania-Connecticut controversy there 
 were several other boundary disputes outstanding 
 between several of the newly born Nations, and 
 in the Articles of Confederation special provision 
 
 '^ Journal oj the Continental Congress, I774-I78g, edited by Worth- 
 ington C. Ford, Washington, 1905, Volume III., page 295. — ^John 
 Sanderson: Biography oJ the Signers of the Declaration of Indepettdence, 
 Philadelphia, 1823, page 250. 
 
 " Journal of the Continental Congress, 1774-178Q, edited by Worth- 
 ington C. Ford, Washington, 1905, Volume III., page 439. 
 
 '^ Journal of the Continental Congress, 1774-178Q, edited by Worth- 
 ington C. Ford, Washington, 1906, Volimie V., pages 698-9. 
 
22 A WORLD COURT IN THE LIGHT OP 
 
 was made looking to the peaceful settlement of 
 the disputed frontiers and land grants. Under the 
 Articles of Confederation, the United States had 
 no judicial department. But by the ninth article 
 of that agreement, provision was made for the 
 establishment of a series of Courts of Appeal to 
 try differences between the various colonies, each 
 Court being established ad hoc to hear one partic- 
 ular case. 
 
 The Articles of Confederation went into efifect in 
 
 1 78 1, and the State of Pennsylvania, following her 
 earlier practice in the controversy, when she was a 
 colony, of appealing this case to the King in Council, 
 petitioned Congress on November 3rd, 1781, accord- 
 ing to the ninth article, for a hearing to settle the 
 question.'* There were many delays. On November 
 14th, 1 78 1, Congress agreed to appoint June 24th, 
 
 1782, as the date for Pennsylvania and Connecticut 
 to put in an appearance, "by their lawful agents, 
 at the place in which Congress shall then be 
 sitting,""* and the Congress further voted to send a 
 formal notice to the legislative authorities of the 
 
 " Journal oj Congress, Philadelphia, 1800, Volume VII., page 169. 
 
 " Journal of Congress, containing their proceedings from January 
 I, 1781, to November 2, 178J, Philadelphia, 1800, Volume VII., 
 page 1 74. 
 
THE UNITED STATES SUPREME COURT. 23 
 
 State of Connecticut that that Commonwealth, as 
 well as Pennsylvania, must put in an appearance 
 before Congress on June 24th, 1782. Accordingly, 
 on the appointed day, Pennsylvania appeared before 
 Congress through her properly accredited counsel, 
 William Bradford, Joseph Reed, James Wilson and 
 Jonathan Dickinson Sergeant, and her solicitor, 
 Henry Osbom. Connecticut had appointed Eliphalet 
 Dyer, William Samuel Johnson and Jesse Root to 
 represent her on that occasion, but only Dyer 
 was present and so the question had to be con- 
 tinued until the next month.^° 
 
 On Jvily 1 6th, the matter was again taken up. 
 Pennsylvania was represented by Wilson and 
 Sergeant, with Osborn as their solicitor, and Connec- 
 ticut by Dyer and Root. After some discussion 
 Congress finally resolved; 
 
 "That the agents of Pennsylvania and Connect- 
 icut be, and they are hereby directed to appoint 
 by joint consent, commissioners or judges to con- 
 stitute a Court for hearing and determining the 
 matter in question, agreeably to the 9th article of 
 the Confederation. "^^ 
 
 ^ Journal of Congress: Philadelphia, 1800, Volume VII., page 302. 
 ^' Journal oj Congress: Philadelphia, i8cx), Volume VIZ., page 315. 
 
24 . A WORLD COURT IN THE LIGHT OP 
 
 On August 1 2th, 1782, the agents for the Com- 
 monwealth of Pennsylvania and the State of Con- 
 necticut reported that, in accordance with the reso- 
 lution of Congress of July i6th, they had appointed 
 as "commissioners to constitute a court for hearing 
 and detcmiining" the controversy between Penn- 
 sylvania and Connecticut, William Whipple of New 
 Hampshire, Nathaniel Green of Rhode Island, 
 David Brearly and William Churchill Houston of 
 New Jersey, Cyrus Griffin and Joseph Jones of 
 Virginia, and John Rutledge of South Carolina." 
 "Any five or more of whom," the agents went on 
 to say in their report, "we have agreed shall con- 
 stitute a Court, and have authority to proceed and 
 determine the matter and difference between the 
 said States." However, Nathaniel Green and 
 John Rutledge declined to serve, and Thomas Nelson 
 of Virginia, and Welcome Arnold, of Rhode Island, 
 were named in their stead.*^ Congress ratified the 
 appointments." 
 
 ** Journal of Congress: Philadelphia, 1800, Volume VII., page 331. 
 ^^ Journal 0/ Congress: Philadelphia, 1800, Volume VII., page 336. 
 
 '* Journal of Congress: Philadelphia, 1800, Volume VII., page 336. 
 
 "Whereupon, Ordered, That the secretary prepare and report the 
 drauRht of a commission for the said William Whipple, Welcome 
 Arnold, David Brearly, William Churchill Houston, Cyrxjs Griffin, 
 
THE UNITED STATES SUPREME COURT, 25 
 
 The Court was commissioned to convene at 
 Trenton, in the State of New Jersey. On November 
 8th, 1782, a quonmi of the members of the Tribunal 
 being in attendance, the Court began to try the case 
 and sat for that purpose until December 30th. The 
 counsel for Pennsylvania were James Wilson, Joseph 
 Reed, Jonathan D. Sergeant and William Bradford. 
 Connecticut was represented by Eliphalet Dyer, 
 Jesse Root and William S. Johnson.^^ The argu- 
 ments of counsel have not come down to us, but the 
 briefs have, and show great learning and much 
 work on the part of the legal representatives of both 
 States in their efforts to win the case for their 
 respective Commonwealths. 
 
 Before the members of the Trenton Inter-State 
 Court decided the case, they agreed that the reasons 
 for their conclusions should never be given, and that 
 the decision should go forth to the world as the 
 unanimous opinion of the Court. 
 
 The decision of the Court was handed down on 
 
 Joseph Jones and Thomas Nelson, or any five or more of them, as 
 commissioners or judges nominated by the States of Pennsylvania 
 and Connecticut, to determine the dispute between the said States 
 agreeable to the 9th article of the Confederation." 
 
 ^^ Pennsylvania Archives, second series, edited by William H. Egle, 
 Harrisburg, 1890, Volume XVIII., page 621. 
 
26 A WORLD COURT IN THE LIGHT OP 
 
 December 30th. It was concise, clear and final. 
 The Covirt held: 
 
 "This Cause has been well argued by the Learned 
 Council on both sides. 
 
 "The Court are now to pronounce their Sentence, 
 or Judgment. 
 
 "We are unanimously of Opinion that the State 
 of Connecticut has no right to the Lands in con- 
 troversy. 
 
 "We are also unanimously of Opinion that the 
 Jurisdiction and Preemption of all the Territory 
 lying within the Charter boundary of Pennsylvania 
 and now claimed by the State of Connecticut do 
 of Right belong to the State of Pennsylvania. 
 
 "WM. WHIPPLE 
 WELCOME ARNOLD 
 DAVD BREARLY 
 CYRUS GRIFFIN 
 WM. C. HOUSTON 
 
 "Trenton, 30th Dcc'r. 1782." 
 
 The decision effectually put an end to the dis- 
 pute of jurisdiction and possession as to whether 
 Pennsylvania or Connecticut was entitled to the 
 lands that both States claimed. As soon as the 
 
THE UNITED STATES SUPREME COURT. 27 
 
 decision was known, President John Dickinson of 
 Pennsylvania issued a proclamation forbidding any 
 violence on the part of individuals to gain posses- 
 sion of disputed land claims. One of the judges of 
 the Court, Griffin, in a letter to President Dickin- 
 son said: "this I will undertake to say, that no 
 Court ever met and decided a great question less 
 subject to partiality or corruption, or in which 
 more candor and freedom of debate were exercised 
 * * * I can assure you, sir, that the commis- 
 sioners were unanimously of opinion that the 
 private right of soil should not be afifected by the 
 decision. "^^ 
 
 The decision shows conclusively that the Trenton 
 Inter-State Tribunal sat as a Court to award jus- 
 tice upon legal grounds, and not as a board of 
 mediation to effect a reconciliation of the conflict- 
 ing claims upon the basis of a compromise. 
 
 Commenting on this case. Judge Henry Wade 
 Rogers has said: "The fact that the defeated sover- 
 eignty acquiesced, although Congress had no power 
 given it to enforce judgment, is without much signifi- 
 cance. A State as small as Connecticut would not be 
 likely to make war upon a State the size of Penn- 
 
 ^' Pennsylvania Archives, second series, Haxrisburg, i8go, pages 
 631-632. 
 
28 A WORLD COURT IN THE LIGHT OF 
 
 sylvania over such a dispute." Besides, Con- 
 necticut could not have passed her troops across 
 the territory of New York without encroaching 
 upon the neutraUty of the latter commonwealth, 
 and so probably involving New York against 
 Connecticut in the contest. Consequently, Con- 
 necticut could only have made war upon Pennsyl- 
 vania after transporting her troops by sea, and the 
 trip from the Connecticut ports to Philadelphia and 
 the other Pennsylvania towns on the Delaware 
 River was far longer and more difficult in 1782 
 than it is to-day. In addition, another compelling 
 reason for the acquiescence of Connecticut in the 
 decision of the Trenton Inter-State Tribunal was 
 the war for independence which was still going on. 
 All of the eleven other States, as well as Pennsyl- 
 vania and Connecticut, wished to see that contest 
 brought to a speedy and successful close. There- 
 fore, all of those eleven commonwealths had a very 
 real interest in wishing the decision accepted. The 
 common good of all the member States of the 
 Confederation aided the acceptance of the decision 
 of the Trenton Inter-State Court. 
 
 The fact, however, that this case, involving the 
 sovereignty to land claimed by two sovereign and 
 member States of the Confederation which had 
 
THE UNITED STATES SUPREME COURT. 29 
 
 been for many years a bone of contention between 
 the two incipient Nations, was peacefully adjusted 
 by the employment of judicial means, was a very 
 great gain for the future of the Confederation. It 
 was not merely that one more cause of future 
 trouble for the United States of America was thus 
 peacefully disposed of, but also it helped to educate 
 the States and their peoples to look to jural rather 
 than to armed means for deciding and disposing 
 of differences between the several members of the 
 Confederated States. 
 
 There were other cases of boundary disputes 
 between the original colonies or States, among 
 them those of South Carolina vs. Georgia, and 
 Massachusetts vs. New York. In these two cases, 
 Inter-State Courts, similar in form to the Trenton 
 Tribunal which sat on the case of Pennsylvania vs. 
 Connecticut, were appointed. But as constantly 
 happens every day in suits started between indi- 
 viduals in the Municipal Courts, those cases were 
 settled out of Court and did not come to trial. 
 Likewise several other cases between two of the 
 States were settled privately before Inter-State 
 Courts had been appointed according to the ninth 
 article of the Articles of Confederation.^'' 
 
 ^' 131 Uniled Stales Supreme Court Reports. 
 
M) A WORLD COURT IN THE LIGHT OP 
 
 PART II. 
 
 In the course of a few years' experience under the 
 Articles of Confederation, however, it was found 
 that a more perfect bond of union between the 
 thirteen States was necessary unless the United 
 States of America were to divide either into several 
 groups or to return to their original thirteen 
 component parts. Accordingly, a Federal Con- 
 vention was called, to which all the States were 
 asked to send delegates. It sat in Philadelphia in 
 1787. After much discussion behind closed doors, 
 it elaborated a fundamental written law or compact 
 which was submitted to the several States for their 
 acceptance or rejection. Probably the most original 
 provision of the new form of government was that 
 for the first time in history it was proposed to estab- 
 lish side by side with the local sovereignty another 
 sovereignty which should extend over all the area 
 of the local sovereignties. The inhabitants were to 
 be endowed with a double allegiance and citizenship; 
 those which they owed to and obtained from the 
 individual State in which they lived, and a new 
 allegiance and citizenship which they would owe 
 and obtain from the new State whose extent would 
 
THE UNITED STATES SUPREME COURT. 31 
 
 be co-extensive with the total area of all the indi- 
 vidual thirteen States combined. 
 
 Another innovation in government embodied in 
 the proposed new American Constitution, was the 
 creation of a Supreme Court for the new Federal 
 State which was not to be subject either to the 
 legislative or executive branches of the government, 
 but was to be co-equal with them. While the plan 
 of an independent judicial power was now to be put 
 into actual practice for the first time in history, the 
 idea nevertheless was not new in 1787. The germ 
 of this idea may have been started before 1748, 
 but at any rate it was clearly formulated in that 
 year in V Esprit des Lois by Montesquieu, published 
 at Geneva. This much cited and talked of but 
 apparently now little read passage of Montesquieu is 
 as follows : ' ' There is no liberty if the power to judge 
 is not separated from the legislative and the execu- 
 tive powers. If it were joined to the legislative 
 power, the authority over the life and liberty of 
 citizens wotdd be an arbitrary one, for the judge 
 wovdd be legislator. If it were joined to the execu- 
 tive power, the judge might have the power of an 
 oppressor. "^^ Montesquieu was one of the pub- 
 
 ^*The original French text is as follows: — "II n'y a point encore 
 de liberty si la puissance de juger n'est pas separfe de la puissance 
 
32 A WORLD COURT IN THE LIGHT OF 
 
 Heists whose works were known to and consulted 
 by the members of the Federal Convention of 
 1787. In addition, however, the conception of 
 a Federal Supreme Court originated, as we have 
 seen, in part in the history of the thirteen colonies. 
 In other words, the Federal Constitution grew in 
 part out of the relations that developed in the 
 colonial period between the colonies themselves and 
 between them and the mother country. 
 
 A motion was made by Dickinson of Pennsylvania 
 during the debates in the Federal Convention mak- 
 ing the judges removable by the executive upon 
 the application of both the Senate and the House of 
 Representatives. In other words, the motion pro- 
 posed a recall of the judges by the joint action of the 
 Congress and the President. John Rutledge of 
 South Carolina opposed the motion on the ground 
 that such a proposition was incompatible with the 
 plan of giving the Federal Supreme Court the right 
 to judge between the United States and the indi- 
 vidual States, or between two or more individual 
 States. The motion was lost.^ 
 
 Idgislative et de rcxccutricc. Si clle dtait jointe k la puissance legis- 
 lative, le pouvoir sur la vie et la libertd des citoyens scrait arbitraire; 
 car le juge serait 16gislateur. Si elle dtait jointe k la puissance exec- 
 utrice, Ic juge pourrait avoir la force d'un oppresseur." 
 
 ** Max Farrand: The Records of the Federal Comention 0] 1787, 
 New Haven, 1911, Volume II., page 428. 
 
THE UNITED STATES SUPREME COURT. 33 
 
 In some of the States, notably Virginia and New 
 York, there was much objection to ratifying the 
 new form of general government, and much of the 
 opposition to adopting the new form of government 
 was because of the powers with which the proposed 
 Supreme Coiu-t of the United States was to be 
 clothed. 
 
 However, the Constitution, which provided for a 
 Supreme Court of the United States that would be 
 independent of and on a par with the executive and 
 legislative branches of the government of the new 
 Nation that it was proposed to create, was finally 
 ratified and accepted by aU of the thirteen member 
 Nations of the Confederation. 
 
 A hitch to the easy acceptance by the member 
 States of the Union of the United States Supreme 
 Court sitting in judgment as a Supreme Tribunal 
 over all the individual States soon occiured. In 
 the celebrated case of Chisholm vs. Georgia,^" one 
 of the earliest cases brought to the bar of the newly 
 constituted Coiut, a citizen of South Carolina sued 
 the State of Georgia. The case came on for a 
 hearing only in February term, 1793, expressly to 
 give the State of Georgia ample time to decide 
 what she would do in the matter. Through counsel, 
 
 *" 2 Dallas, page 419. 
 
34 A WORLD COURT IN THE LIGHT OF 
 
 Georgia presented a remonstrance against such a 
 suit being entertained by the Court, but took no 
 further part in the case. Randolph, the Attorney- 
 General of the United States, argued the right of 
 the plaintiff in the case, to bring the suit. The 
 members of the Tribunal gave separate opinions. 
 
 Chief Justice Jay in his opinion stated the ques- 
 tion at issue with great clearness. He said: "The 
 question we are now to decide has been accurately 
 stated, viz.: Is a State suable by individual citizens 
 of another State? It is said that Georgia refuses 
 to appear and answer to the Plaintiff in this 
 action, because she is a sovereign State, and there- 
 fore not liable to such action." He held that a 
 State of the Union was suable by a citizen of 
 another State. With him agreed Justices Blair, 
 Wilson and Cushing, while Justice Iredell was 
 opposed to a construction of the Constitution 
 which would "admit, under any circumstances, 
 a compulsive suit against a State for the recovery 
 of money." 
 
 The Court ordered the plaintiff to file his 
 declaration, copies of which were to be served by 
 the Tribunal on the Governor and the Attorney- 
 General of Georgia by or before the following June, 
 and that unless the State appeared or showed 
 
THE UNITED STATES SUPREME COURT. 35 
 
 cause to the contrary to the Court by the first 
 day of the next term, judgment by default would 
 be entered against the State of Georgia. 
 
 As none of the other States of the Union, how- 
 ever, relished the idea of being brought as Georgia 
 had been, to the bar of the United States Supreme 
 Court by a citizen of another State, the eleventh 
 amendment to the Federal Constitution, expressly 
 to overcome for the futvure the results of that deci- 
 sion, was added in January, 1798, having been on 
 the eighth of that month ratified by three-fourths 
 of the States of the Union. That amendment pro- 
 hibited the judicial power of the United States 
 entertaining suits begun against a State of the 
 Union by the citizens of another State or by the 
 citizens of a foreign State. The writ of enquiry 
 awarded to the plaintiff in Chisholm vs. Georgia 
 was not sued out, and so that cause as well as all 
 other suits by individuals against States that were 
 pending, were swept away from the records of the 
 Court by the eleventh amendment to the Federal 
 Constitution "agreeably to the unanimous deter- 
 mination of the Judges, in HoUingsworth et al. vs. 
 Virginia, argued at February term, 1798." It is 
 altogether probable that the authorities of South 
 Carolina persuaded Chisholm, a South Carolinian, 
 
36 A WORLD COURT IN THE LIGHT OF 
 
 not to sue out the writ under the decision in Chis- 
 holm vs. Georgia. 
 
 When the Supreme Court of the United States 
 was organized under the Constitution, with John 
 Jay of New York as Chief Justice and four asso- 
 ciate Justices, at first it had not much to do. How- 
 ever, slowly, cases came to its bar, and it asserted, 
 with John Marshall as its Chief Justice, its right 
 to exist as a separate and co-ordinate branch of the 
 Government by the side of the Legislative (Con- 
 gress) and the Executive (President) departments. 
 The Court decided whether the laws passed by the 
 Congress were legal under the Constitution, and so 
 whether it was lawful for the President or Executive 
 department to carry such laws into effect, or whether 
 they were void according to the spirit and mean- 
 ing of the Constitution and so of no avail. 
 
 In the famous case of Marbury vs. Madison, 
 Chief Justice Marshall, in delivering the opinion 
 of the Supreme Court, gave a clear and lucid expo- 
 sition of the juxtaposition of the three great depart- 
 ments of government to one another within the 
 meaning of the Constitution. He said :^' 
 
 "The powers of the legislature are defined, and 
 limited; and that these limits may not be mistaken, 
 
 *' I Cranch, Untied Slaies Supreme Court Reports, page 176. 
 
THE UNITED STATES SUPREME COURT. 37 
 
 or forgotten, the Constitution is written. To what 
 purpose are powers limited, and to what purpose is 
 that Hmitation committed to writing, if these limits 
 may, at any time, be passed by those intended to be 
 restrained? The distinction, between a government 
 with limited and unlimited powers, is abolished, if 
 those limits do not confine the person on whom they 
 are imposed, and if acts prohibited and acts allowed, 
 are of equal obligation. It is a proposition too 
 plain to be contested, that the constitution controls 
 any legislative act repugnant to it ; or, that the legis- 
 lature may alter the constitution by an ordinary act. 
 
 "Between these alternatives there is no middle 
 ground. The constitution is either a superior, 
 paramount law, unchangeable by ordinary means, 
 or it is on a level with ordinary legislative acts, and 
 like other acts, is alterable when the legislature 
 shall please to alter it. 
 
 "If the former part of the alternative be true, 
 then a legislative act contrary to the constitution 
 is not law; if the latter part be true, then written 
 constitutions are absurd attempts on the part of the 
 people, to limit a power, in its own nature illimitable. " 
 
 The Federal covirts have the right and it is their 
 duty to judge whether laws passed by Congress are 
 constitutional or not. 
 
38 A WORLD COURT IN THE LIGHT OF 
 
 Marshall ended by saying "that a law repugnant 
 to the constitution is void; and that courts, as well 
 as other departments, are bound by that instru- 
 ment. "'^^ 
 
 A custom had grown up and existed, as we have 
 seen, among the English-speaking North American 
 colonies of sending their boundary disputes across 
 the Atlantic for final settlement to the home govern- 
 ment, an authority which was supreme over all the 
 colonies as well as independent of them until the 
 colonies began in 1775 their revolt, which resulted 
 in the winning of their complete independence. 
 In that manner, gradually the ground was prepared 
 for the creation, under the Articles of Confederation 
 of the United States of America, for the setting up 
 ad hoc of Inter-State Tribunals, and subsequently, 
 under the Constitution of 1789, the establishment 
 of a Supreme Federal Tribunal which should be 
 independent of the other co-ordinate branches of the 
 proposed new Federal Government and also 
 empowered to judge the legality or constitutionality 
 of the laws which the legislative body of the new 
 government might enact or the manner in which the 
 executive branch of that government might attempt 
 
 '^ I Cranch, UniUd States Supremt Court Reports, page 180. 
 
THE UNITED STATES SUPREME COURT. 39 
 
 to execute those laws, as well as to judge between 
 the individual States. 
 
 In August term, 1799, the State of New York 
 brought suit in the Supreme Court of the United 
 States against the State of Connecticut for the 
 purpose of establishing the title of the former com- 
 monwealth to a tract of land which it claimed under 
 an agreement entered into between New York and 
 Connecticut on November 28th, 1683. The suit 
 was to enforce the specific performance of the 
 agreement. The case was settled without a decision 
 being given on the legal merits of the controversy. 
 Of New York vs. Connecticut, Justice Baldwin in 
 1838 said it was held in 1799 "that though a State 
 could not sue at law, for an incorporeal right, as 
 that of sovereignty and jurisdiction, there was no 
 reason why a remedy could not be had in equity." 
 
 It was not, however, apparently until more than 
 a generation after the Tribunal was instituted that 
 a case of difference between two of the States of the 
 Union was started on its way to the Supreme 
 Federal Tribunal. New Jersey and New York 
 disagreed as to their boundary line, and the former 
 of those two States filed a bill in 1831 before the 
 Supreme Court of the United States against the 
 
 ^' 3 Dallas, page 413, for the original case. 
 
40 A WORLD COURT IN THE LIGHT OP 
 
 State of New York with the object of ascertaining 
 and deciding the frontier line dividing the two 
 commonwealths.^ The opinion of the Court was 
 given by Chief Justice Marshall, and the Tribunal 
 held that if after service of process had been made 
 by New Jersey upon the Governor or Attorney- 
 General of New York, and the latter commonwealth 
 had failed to respond within sixty days, New Jersey 
 could appear, through her properly constituted legal 
 representatives, before the Coiut and proceed ex- 
 par le. Before the case came to a final decree. 
 New York compromised the dispute with New 
 Jersey to the satisfaction of the latter State, but the 
 rule of procedure then established has since been 
 followed. 
 
 Hardly had New Jersey and New York settled 
 their frontier dispute out of court, than a new con- 
 tested boundary case between two States was 
 brought to the bar of the Federal Supreme Court. 
 
 It was in March, 1832, that began the long drawn 
 out and stoutly contested case of the State of Rhode 
 Island and Providence Plantations, complainants, 
 vs. the Commonwealth of Massachusetts, defendant. 
 Rhode Island brought suit on March i6th, 1832, in 
 
 ** New Jersey vs. New York, 5 Peters; Vnilcd Stales Suprrme 
 Court Reports, 1831, page 284. 
 
THE UNITED STATES SUPREME COURT. 41 
 
 the Supreme Court of the United States, against 
 Massachusetts in order to have the boundary or 
 frontier Hne between the two commonwealths 
 settled by a judicial decision.^'' The case was not 
 finally decided until January, 1846. Daniel Webster 
 was the leading counsel for Massachusetts and Mr. 
 Hazard for Rhode Island. The two States claimed 
 the land in dispute under various royal charters 
 granted by the Crown of England. Rhode Island 
 also advanced a right in virtue of grants from the 
 Indians. Controversies existed over the boundary 
 between the two colonies at an early period in their 
 history. The contention between the two States 
 was whether a line run in 1642 by two surveyors, 
 named Woodward and Saffrey, was the true divi- 
 sional line between the two commonwealths as 
 Massachusetts claimed, or whether it should be 
 moved about foiir miles further north as Rhode 
 Island contended. As Massachusetts was in posses- 
 sion of the territory in dispute, Rhode Island 
 appealed as complainants to the equity side of the 
 Coiart that "the northern boundary line between the 
 complainants and the State of Massachusetts may, 
 
 ^^ The United States Supreme Court Reports, 12 Peters, page 657; 
 li Peters, page 23; 14 Peters, page 210; 15 Peters, page 233; 4 
 Howard, page 591. 
 
42 A WORLD COURT IN THE LIGHT OF 
 
 by the order and decree of this honorable Court, 
 be ascertained and estabUshed; and that the rights 
 of jurisdiction and sovereignty of the complainants" 
 might be restored and confirmed to them.** 
 
 On the part of Massachusetts, it was pressed in 
 the argument of counsel that the Court, under the 
 Constitution, did not possess jurisdiction over all 
 cases between the States but only "controversies;" 
 and that a disputed boundary question, where 
 sovereignty and not merely title was involved, lay 
 outside of the jurisdiction of the Tribunal. 
 
 At the January term, 1838, of the Court, Justice 
 Baldwin delivering the opinion of the Tribunal, held 
 that the word "controversies" applied to all disputes 
 or controversies between the States, and that con- 
 sequently the Court had jurisdiction in the case at 
 bar. Referring to the argument urged on behalf of 
 Massachusetts that the controversy was a political 
 and not a judicial question, Justice Baldwin said: 
 "It is said, that this is a political, not a civil con- 
 troversy between the parties; and so not within the 
 Constitution, or thirteenth section of the judiciary 
 act." In the view of the Court, the controversy was 
 over either the locality of a point three miles south 
 of a certain river, or whether a certain point was the 
 
 *• 12 Peters, Utiiled Stales Supreme Court Reports, page 665. 
 
THE UNITED STATES SUPREME COURT. 43 
 
 ' ' true point from which to run an east and west line, " 
 as the agreed boundary between the two colonies or 
 States. "In the first aspect of the cases, it depends 
 on a fact; in the second, on the law of equity, 
 whether the agreement is void or valid: neither of 
 which present a political controversy, but one of an 
 ordinary judicial nature, of frequent occurrence in 
 suits between individuals. This controversy, then, 
 cannot be a political one." The Court, therefore, 
 decided against the plea of Massachusetts that the 
 Tribunal had not jurisdiction according to the grant 
 of the Constitution, and the case went on to be tried 
 on the merits of the proper location of the frontier 
 between the two States which had appeared through 
 counsel before the bar of the Supreme Court. 
 
 From this ruling the Chief Justice of the Tribunal, 
 Roger Brooke Taney, dissented. He held that the 
 case was political, not judicial, in character, and that 
 the Court did not have jurisdiction. 
 
 "The powers given to the Courts of the United 
 States by the Constitution," that great Judge said, 
 "are judicial powers; and extend to those subjects, 
 only, which are judicial in their character; and not 
 to those which are political. * * * 
 
 " Contests for rights of sovereignty and jurisdiction 
 between States over any particular territory, are not, 
 
44 A WORLD COURT IN THE LIGHT OP 
 
 in my judgment, the subject of judicial cognizance 
 and control, to be recovered and enforced in an ordi- 
 nary suit; and are, therefore, not within the grant 
 of judicial power contained in the Constitution." 
 The Supreme Court of the United States having 
 determined that it possessed the right to decide the 
 difference between Rhode Island and Massachu- 
 setts concerning the boundary or frontier that 
 separated their respective territories over which 
 they could exercise and maintain sovereign author- 
 ity, the case was thereafter argued by the most 
 eminent of counsel upon the merits of the boundary 
 question itself before the Court. Finally at Jan- 
 uary term, 1846, the Court, Justice McLean deliv- 
 ering the opinion of the Tribunal, sustained the 
 contention of Massachusetts as to the possession of 
 the long strip of territory over which the dispute 
 had arisen between the two States. A disagree- 
 ment, which had lasted between two Common- 
 wealths for well over a century, was thus peacefully 
 settled by a judicial decision based upon legal 
 grovmds. A great precedent and step forward was 
 thus estabhshed in the settlement of disputes 
 between the member States of the North American 
 Union by judicial decisions instead of by an appeal 
 to armed combat. 
 
THE UNITED STATES SUPREME COURT. 45 
 
 As the first great question decided by the United 
 States Supreme Court between two of the member 
 States of the North American Union, the case of 
 Rhode Island vs. Massachusetts may, in some 
 important respects, be compared in the sphere of 
 the United States of America, with the submission 
 of the Alabama Claims case to the Geneva Tribunal, 
 the first regtdarly constituted International Judicial 
 Tribunal, in the domain of the family of Nations. 
 
 Following the final settlement by the Cotirt of 
 the contention between Rhode Island and Massa- 
 chusetts over the proper location of the divisional 
 line between those two commonwealths, other dis- 
 puted frontier cases between two of the member 
 States of the Union were brought to the bar of the 
 Federal Supreme Court for final decision and 
 settlement. 
 
 Then there began to be referred for settlement to 
 that high Court an increasingly long list of cases 
 of disagreement between two of the member States 
 of the Union. These cases have involved matters 
 of various interest. 
 
46 A WORLD COURT IN THE LIGHT OF 
 
 PART III. 
 
 In January term, 1849, a dispute over the 
 northern boundary of the State of Missouri and the 
 southern Une of the State of Iowa was tried by the 
 Supreme Court of the United States.'^ The opinion 
 turned upon the proper interpretation of some 
 treaties between the United States Government 
 and some Indian tribes, the Great and the Little 
 Osage Nations, and the existence of certain alleged 
 rapids in the Des Moines River. 
 
 Ten years later the State of Alabama brought 
 suit in the Supreme Federal Tribunal against her 
 sister State, Georgia, over their mutual boundary 
 line.** Alabama claimed to low water on the western 
 bank of the Chattahoochee River, while Georgia 
 asserted her sovereignty extended to high water on 
 the western side of the river. The decision turned 
 in part upon the definition of what was meant by 
 the word "River." 
 
 In 1870 the same high Court tried the con- 
 
 *^ Missouri vs. Iowa: 7 Howard's United Slates Supreme Court 
 Reports, page 660. 
 
 ** The State of Alabama %'s. the State of Georgia: 23 Howard's 
 United Slates Supreme Court Reports, 1859, page 505. 
 
THE UNITED STATES SUPREME COURT. 47 
 
 troversy between the States of Missouri and Ken- 
 tucky over the possession of Wolf Island in the 
 Mississippi.^^ After a careful consideration of the 
 evidence adduced by the two States, the judgment 
 of the Tribunal was in favor of Kentucky. 
 
 In 1889 Indiana brought a suit in equity against 
 Kentucky "to settle and determine the boundary 
 line between" the two States.'*" The dispute was 
 over the possession of an island on the north side 
 of the Ohio River, about five miles long and more 
 than a mile wide, with an area of about two thousand 
 acres. In defense to the suit of Indiana, Kentucky 
 claimed that Virginia had passed an Act in 1783 
 in her legislature whereby Virginia empowered her 
 delegates in Congress to convey to the United States 
 all Virginia's rights "to the territory or tract of 
 country within the limits of the Virginia charter, 
 situate, lying and being to the northwest of the 
 river Ohio." Kentucky further asserted that on 
 March ist, 1784, the delegates of Virginia in the 
 Congress of the Confederation executed a formal 
 deed giving to the United States all the rights of 
 
 *® Missouri vs. Kentucky: ii Wallace's United Slates Supreme 
 Court Reports, 1870, page 395. 
 
 *" Indiana vs. Kentucky: 136 United States Supreme Court Reports, 
 1889, page I. 
 
48 A WORLD COURT IN THE LIGHT OP 
 
 sovereignty, etc., of Virginia in the territory "situate 
 lying and being to the northwest of the Ohio." 
 Indiana was admitted as a State of the United 
 States many years subsequently to the admission 
 of Kentucky as a State. The opinion of the 
 Tribunal was in favor of Kentucky. 
 
 The boundary case of Virginia vs. Tennessee was 
 heard in 1892 and decided in 1893." The judg- 
 ment of the Tribunal gave an exhaustive historical 
 review of the claims advanced by the two con- 
 tending States, and looked at the case from many 
 points of view. In reference to prescription, quota- 
 tions were given in the opinion from such well 
 known writers on the Law between Nations as 
 Vattel and Wharton. The judgment was in favor 
 of the claims of Tennessee. 
 
 In 1904, the Federal Supreme Court handed down 
 a decision in the case of Missouri vs. Nebraska." 
 The facts briefly were as follows. From the time 
 the two States were admitted into the Union until 
 1867, the course of the Missouri River where it 
 was the boimdary between the two States had 
 
 *' Virginia vs. Tennessee: 148 United Slates Supreme Court Reports, 
 page S03. 
 
 *^ Missouri vs. Nebraska: 196 United Slates Supreme Court Reports, 
 1904, page 23. 
 
THE UNITED STATES SUPREME COURT. 49 
 
 changed its course by only such variations as 
 naturally followed in the passage of time from one 
 side of the stream to the other. But on July 5th, 
 1867, within a period of twenty-four hours and 
 during a flood, the river which up to that time for 
 years back had passed round McKissick's Island, 
 cut for itself a new channel about half a mile wide 
 across land which then belonged to Nebraska. 
 After this change in the course of the river, the 
 Missouri ceased flowing round McKissick's Island, 
 the old channel dried up and this sudden change 
 in the course of the river became permanent. As 
 a consequence, land which before this change in the 
 Missouri's course was west of the river, thereafter 
 was east of the river. Did this sudden and continu- 
 ing change in the course of the Missouri River make 
 a change in the boundary line between the two 
 States? The Tribunal held the boundary between 
 Missouri and Nebraska was not changed but re- 
 mained as it was before the avulsion and that the 
 land in dispute continued to form part of Nebraska. 
 In 1905, Chief Justice Fuller handed down the 
 opinion of the Supreme Coiut of the United States 
 in the frontier case of Louisiana vs. Mississippi.*^ 
 
 *^ Louisiana vs. Mississippi: 202 Untied Stales Supreme Court 
 Reports, 1905, page i. 
 
50 A WORLD COURT IN THE LIGHT OP 
 
 The two States clashed over their boundary, because 
 they both wished to possess valuable oyster beds; 
 and the oyster legislation of the two States led to a 
 conflict between their respective authorities. The 
 Court applied the doctrine of the thalweg to the case, 
 saying that the word had been taken over into many 
 languages. The Chief Justice referred in his opinion 
 to the San Juan Water Frontier decision, the 
 Alaskan Boundary case, and Lord Stowell's judg- 
 ment in the case of The Anna (1805). 
 
 In 1908 in the case of Missouri vs. Kansas, the 
 Supreme Federal Tribunal held that, notwithstand- 
 ing the gradually changing position of the Missouri 
 River, the middle of that stream was the proper 
 boundary between the two States; and further that 
 an island in the Missouri River lying west of its main 
 channel as it then existed at the time the case was 
 heard, belonged to Kansas, even though that same 
 island was situated to the east of the original 
 boundary line that divided the two States.'" 
 
 The boundary case of Washington vs. Oregon, 
 was decided in 1908.** There were and are two 
 
 ** Missouri vs. Kansas: 213 United Slates Supreme Court Reports 
 J 908, page 78. 
 
 "Washington vs. Oregon: an United States Supreme Court 
 Reports, 1908, page 127; ibid, Volume 214, page 205. 
 
THE UNITED STATES SUPREME COURT. 51 
 
 channels at the entrance of the Columbia River. 
 The act admitting Oregon as a State of the Union 
 provided for a boundary passing through the middle 
 of the north channel. Subsequently, the State of 
 Washington, some years after its admission as a 
 State, contended that the boundary should pass 
 through the southern of the two channels, as it 
 had then become the main or most important channel 
 at the mouth of the Columbia River. The Court 
 upheld the contention of Oregon. 
 
 The disputed frontier of Maryland vs. West 
 Virginia was tried in 1909 by the Court sitting in 
 Equity.'*® In substance in this case the Tribunal 
 decided that a boundary which has been accepted 
 as the frontier for a century or so between two of the 
 member States of the Union should be maintained 
 for the future, even though it might not have been 
 correctly run according to astronomical calculations. 
 
 The eleventh amendment to the United States 
 Constitution provided that the judicial power of the 
 United States should not extend to suits by private 
 citizens against a member State of the Union.*^ 
 
 *' Maryland vs. West Virginia: In Eqmty. 217 United States 
 Supreme Court Reports. 
 
 *^ New Hampshire vs. Louisiana and others: New York vs. 
 Louisiana and others: 108 United States Supreme Court Reports, 1882, 
 
52 A WORLD COURT IN THE LIGHT OF 
 
 Nevertheless enterprising individuals attempted to 
 bring such suits. 
 
 In 1882 some citizens of New Hampshire and New 
 York, the owners of Louisiana State bonds upon 
 which they could not collect the interest, tried, with 
 the aid of their respective States, to assign their 
 bonds to their respective States, with the object 
 that the latter would bring suit in their own names. 
 The two State Legislatures obligingly complied. 
 The Supreme Court of the United States, however, 
 held, that in view of the eleventh amendment a 
 member State of the United States cannot create a 
 controversy with a sister State by taking upon itself 
 the recovery of debts owing to its own citizens by 
 the other State. 
 
 The above plan having failed, some individuals 
 who held about two hundred and fifty bonds of 
 South Carolina upon which they were unable to 
 recover, made an outright gift of ten of those 
 bonds to the State of South Dakota.** That 
 State sued its sister State, and gained judgment 
 
 page 76. The eleventh amendment which went into effect January 
 8th, 1798, reads: "The judicial power of the United States shall 
 not be construed to extend to any suit in law or equity, commenced 
 or prosecuted against one of the United States by citizens of another 
 State, or by citizens and subjects of any foreign State." 
 
 *' 108 Untied Slates Supreme Court Reports. 
 
THE UNITED STATES SUPREME COURT. 53 
 
 for the ten bonds.*' But the Court held that the 
 individuals were not helped thereby to recover 
 about two hundred and forty other bonds. As 
 to the right of South Dakota to recover, the 
 Tribunal was divided. Five justices held that 
 South Dakota could recover, while four were of 
 the opinion that, in view of the eleventh amend- 
 ment, she could not recover. 
 
 Questions of disputes arising between mem- 
 ber States of the Union over the right to control 
 the use of water courses have been submitted 
 to and decided by the Federal Supreme Court. 
 Such a case was that of Kansas vs. Colorado.®" 
 In that case Kansas brought suit to enjoin Col- 
 orado from absorbing to the use of the inhabitants 
 of the latter State the waters of the Arkansas 
 River, which, taking its source in the Rocky Moun- 
 tains in the State of Colorado, flows through 
 Colorado on into the State of Kansas where it 
 becomes a navigable stream suitable for the pur- 
 poses of communication and commercial dealings. 
 Kansas maintained that Colorado was using more 
 
 *' South Dakota vs. South Carolina: 192 United Stales Supreme 
 Court Reports, 1903, page 286. 
 
 ^ State of Kansas vs. State of Colorado: 185 United States Supreme 
 Court Reports, page 125; ibid. Volume 206, page 406. 
 
54 A WORLD COURT IN THE LIGHT OP 
 
 than her proper share of the waters of the Arkansas 
 River for purposes of irrigation and in time would 
 absorb it all and ruin the river for navigation in 
 Kansas. The Tribunal sustained its jurisdiction 
 in the case. On the merits, however, the decision 
 was against Kansas, without prejudice either to 
 another suit or to the Federal Government to 
 preserve and control the rights of navigation. 
 - Another case involving rights in water courses 
 was the suit brought by Missouri against Illinois 
 and the Sanitary District of Chicago.*' In this 
 case the authorities of Chicago built a drainage 
 canal from Lake Michigan to a river flowing into 
 the Mississippi River. Their object was to have 
 the sewage of Chicago, which formerly was ejected 
 into Lake Michigan, thereafter carried off' and 
 discharged into the Mississippi River. The case 
 was tried twice by the Court. On the first hearing 
 the Court upheld the right of Missouri to bring 
 suit because the construction of the canal might 
 be a cause of danger to the well being of the people 
 of Missouri. At the second trial of the case, the 
 Tribunal held that Missouri had not made out a 
 
 " Missouri vs. Illinois and the Sanitary District of Chicago, 180 
 United Slates Supreme Court Reports, page jo8; ibid, Volume aoo, 
 page 496. 
 
THE UNITED STATES SUPREME COURT. 55 
 
 case that this drainage was dangerous to the health 
 of her citizens. 
 
 The Federal Supreme Court has construed 
 broadly its original jurisdiction in sustaining suits 
 by States against the citizens of another State, 
 thereby extending the ramifications leading to 
 possible causes of conflict in the interests of two 
 or more States over which the Court is the final 
 judge or arbiter. For example in the case of 
 Georgia vs. The Tennessee Copper Company, 
 Georgia brought suit to restrain a copper company 
 in Tennessee from discharging harmful gases from 
 their works which were blown by the winds over 
 the territory of Georgia to the detriment of prop- 
 erty of some of the citizens of Georgia.®^ The 
 Court held that, as on "the evidence the pollution 
 of the air and the magnitude of that pollution" 
 were not open to question, after allowing the 
 defendants a reasonable time to control the fumes, 
 an injunction against their works would be issued. 
 
 In the case of Louisiana vs. Texas, however, 
 jurisdiction was refused by the Tribunal on the 
 ground that the case was rather a complaint of 
 some individuals in New Orleans than a controversy 
 
 °^ Georgia vs. Tennessee Copper Company, 206 United States 
 Supreme Court Reports, 1906, page 236. 
 
56 A WORLD COURT IN THE LIGHT OF 
 
 between States. The suit was rather Uke a case of 
 Private International Law between individuals in- 
 stead of a case of Public International Law between 
 States.*^ And so the case of Louisiana was dis- 
 missed. 
 
 South Carolina vs. Georgia was the case of a bill 
 in equity filed by South Carolina asking for an in- 
 junction restraining the State of Georgia, the 
 Secretary of War of the United States, the Chief of 
 the Corps of the United States Engineers, and their 
 agents from "obstructing or interrupting" the 
 navigation of the Savannah River, in violation of the 
 compact entered into by the States of South Caro- 
 lina and Georgia on April 24th, 1787." The Court 
 decided that the power to regulate the navigation 
 of the Savannah River had passed from the two 
 States upon the adoption of the Constitution to 
 the Federal Government. 
 
 In 1907, Virginia brought suit against West 
 Virginia for a proper division of the debt of Virginia 
 with West Virginia," Originally West Virginia when 
 
 " Louisiana vs. Texas: 176 United Staits Supreme Court Reports, 
 1899, page I. 
 
 " South Carolina vs. Georgia, 93 United States Supreme Court 
 Reports, 1876, page 4. 
 
 ** Commonwealth of Virginia vs. State of West Virginia: 209 
 United Slates Supreme Court Reports, 1907, page 514. 
 
THE UNITED STATES SUPREME COURT. 57 
 
 she became a State had agreed to assume her proper 
 proportion of the debt of Virginia as it stood in 1861, 
 but West Virginia had never carried her intention 
 into effect. In 1908 the Federal Supreme Court 
 upheld its jurisdiction in the case. In 19 10 the suit 
 was referred to a master and was then brought 
 before the Court, which decided that West Virginia 
 must assume her share of the debt in proportion to 
 the basis of population and wealth in 1863 of what 
 was the whole State of Virginia at the time when 
 West Virginia broke off and became a separate 
 State of the Union. The two States, however, were 
 to attempt out of Court to decide the amount of the 
 debt which West Virginia was to assume as her 
 share, before asking the Court to decree the exact 
 amount.^* 
 
 A review of the above cited cases shows that the 
 highest Federal Court of the American Union has 
 been called upon to decide, and has decided cases of 
 disagreement between States of the Union that 
 involved questions of boundary between the States; 
 the regulation of water courses which, taking their 
 rise in one State passed lower down in their course 
 into and through the land of another Commonwealth ; 
 
 ^* Commonwealth of Virginia vs. State of West Virginia: 220 
 United States Supreme Court Reports, 1911, page i. 
 
S8 A WORLD COXJRT IN THE LIGHT OF 
 
 the regulation of the discharge of sewage by one 
 State so that one of her sister States complained that 
 it was a detriment of the latter's interest; the 
 enjoining of nuisances in neighboring common- 
 wealths; finding out and apportioning in an equit- 
 able proportion public or State debts; and other 
 subjects involving the interests of the inhabitants of 
 two States. 
 
 PART IV. 
 
 While it is apparent from the many cases 
 examined above that the United States Supreme 
 Court has successfully decided and by its decisions 
 settled in peace many controversies between two of 
 the member States of the Union which otherwise 
 might have resulted in war between the contestants, 
 it must not be forgotten that all was not smooth 
 sailing in the effort of the United States to prevent 
 strife between its individual member States. A 
 few cases of difference arose which threatened to 
 bring on an armed contest between the United 
 States and one of its member States; and one 
 controversy at least almost precipitated an armed 
 conflict between one of the member States of the 
 
THE UNITED STATES SUPREME COURT. 59 
 
 Union and a Territory which was an applicant for 
 full statehood within the Union. 
 
 In September, 1778, a British war vessel captured 
 Gideon Olmstead of Connecticut and three other 
 American fishermen near Cape Charles and took 
 them to Jamaica. Placed there on the Sloop Active 
 laden with a cargo of arms and other supplies 
 for the British army, they were forced to aid 
 in navigating the vessel to New York. One night 
 the opportunity came to Olmstead and his three 
 companions to seize possession of the vessel, where- 
 upon they steered for Little Egg Harbor, New 
 Jersey. When the Active was in full sight of the 
 New Jersey coast, an armed brig equipped and 
 commissioned by the State of Pennsylvania, the 
 Convention, pursued and by force, against the pro- 
 test of Olmstead, captured the Active, took her into 
 the port of Philadelphia, and there Captain Thomas 
 Houston of the brig claimed the Active as his prize 
 of war. Another privateer, Le Gerard, which was 
 in sight when the Convention took Olmstead and his 
 prize, also claimed a share of the prize money as 
 Le Gerard was acting in conjunction with the 
 Convention. ^^ 
 
 *^ Hampton L. Carson: The case of the Sloop "Active:" The Green 
 Bag: Boston, 1895, Volume VII., page 17. 
 
60 A WORLD COURT IN THE LIGHT OF 
 
 The case was tried before Judge Ross, a signer of 
 the Declaration of Independence, and a jury. The 
 jury of the State Court decided that only one fourth 
 of the prize money should go to Olmstcad, while 
 the remaining three fourths they divided between 
 the State of Pennsylvania, the owners of the priva- 
 teers, and the officers and crews of the Convention 
 and Le Gerard. The Judge, who was bound by the 
 local law which gave the jury the right to decide 
 the facts, showed his sympathy for Olmstead and 
 his associates. The latter promptly appealed to 
 Congress. 
 
 By Congress, which was then sitting in the 
 Pennsylvania State House, the case was referred to 
 its standing Committee on Appeals, who called 
 themselves "The Court of Commissions on Appeal 
 for the United States of America." After hearing 
 arguments and investigating, the Committee decided, 
 September 15th, 1778, to reverse the State Court, 
 directed the marshal of that Court to sell the sloop 
 and cargo and, after deducting the cost, to pay the 
 surplus to Olmstead and his friends. When Judge 
 Ross, however, called on the marshal to pay the 
 money into the Judge's hands, the Commissioners 
 realized that they did not have the power at their 
 backs to enable them to enforce their judgment. 
 
THE UNITED STATES SUPREME COURT. 61 
 
 And so they said wisely they would wait until their 
 powers as a Tribunal were more clearly defined. 
 
 "In the meantime," Mr. Hampton L. Carson 
 has pointed out, "Judge Ross had, with great 
 dignity and firmness, placed upon the records 
 of his court a vindication of his action, alleging 
 that after mature consideration he was of opinion 
 that though the Court of Appeals had full authority 
 to alter or set aside the decree of a Judge upon a 
 pure question of law, yet there its power ended; 
 that the verdict of the jury was made conclusive 
 upon the facts without re-examination or appeal, 
 under the terms of the State law erecting his tri- 
 bunal, and he would submit to no usurpation of 
 power." 
 
 On March 6th, 1779, Congress decided by a vote 
 of 21 to 6, the minority consisting of the five dele- 
 gates from Pennsylvania and Witherspoon of New 
 Jersey, that the Committee of Congress which had 
 heard the appeal from the Pennsylvania Court in 
 the case of Olmstead, had the power and was duly 
 constituted to hear that appeal. On the other side 
 the Legislative Assembly of Pennsylvania author- 
 ized Judge Ross to pay over the money which he 
 received from the sale of the cargo and sloop to 
 David Rittenhouse, the State Treasurer. 
 
62 A WORLD COURT IN THE LIGHT OF 
 
 Time passed, and the Constitution of the United 
 States was composed in Philadelphia in the same 
 Pennsylvania State House in which the Declaration 
 of Independence was voted, and then the Consti- 
 tution was ratified by the individual States, including 
 Pennsylvania. Section two of article three of the 
 new Constitution gave to the United States power 
 over all cases of admiralty and maritime jurisdiction. 
 The power of a new Nation was ready now to take 
 cognizance of the case of Olmstead and his asso- 
 ciates. Finally, after a number of years had passed, 
 during which several inconclusive things happened, 
 Olmstead appeared in 1803 before Judge Peters in 
 the United States District (iourt at Philadelphia 
 and obtained a decree against the daughters and 
 executrices of Rittenhouse. Thereupon the Legis- 
 lature of Pennsylvania passed an act requiring 
 Rittenhouse's daughters to pay over the funds in 
 dispute to the State Treasurer and requiring the 
 Governor of the State to protect their persons 
 and property. As Mr. Carson has shown the 
 apparent contestants in the case were a man of 
 seventy-six years and two women who had inherited 
 the suit at law; but the real contestants were the 
 Commonwealth of Pennsylvania and the United 
 States of America. Nothing further was done by 
 
THE UNITED STATES SUPREME COURT, 63 
 
 Judge Peters. In 1808 Olmstead appealed to the 
 Supreme Court of the United States. Chief Justice 
 Marshall issued a mandamus. In his opinion he 
 said : "If the Legislature of the several States may 
 at will annul the judgments of the Courts of the 
 United States, and destroy the rights acquired 
 under those judgments, the Constitution itself 
 becomes a solemn mockery, and the Nation is 
 deprived of the means of enforcing its laws by the 
 instnimentality of its own tribunals. So fatal a 
 result must be deprecated by all; and the people of 
 Pennsylvania, not less than the citizens of every 
 other State, must feel a deep interest in resisting 
 principles so destructive of the Union and in averting 
 consequences so fatal to themselves. * * * The 
 State of Pennsylvania can possess no Constitutional 
 right to resist the legal process which may be directed 
 in this case," 
 
 When in obedience to the mandamus granted by 
 the United States Supreme Court, Judge Peters 
 issued his writ, the marshal of the District Court 
 found the house of Rittenhouse's daughters at Arch 
 and North Seventh Streets, afterwards known as 
 Fort Rittenhouse, surrounded by the State militia. 
 Civil war seemed a possibility. The futility of one 
 State of the Union standing up against the strength 
 
64 , A WORLD COURT IN THE LIGHT OP 
 
 of all the others, however, was apparent, and in the 
 end the counsel of the wise men of Pennsylvania 
 prevailed, the State of Pennsylvania yielded to 
 the Federal Government, and in the end Olmstead 
 received his prize money. 
 
 A dispute which threatened about 1835 to break 
 loose in war within the Union was the disagreement 
 between the State of Ohio and the Territory of 
 Michigan over the possession of a strip of land 
 which included the port of Toledo on Lake Erie.** 
 In this case the Federal Supreme Court was not 
 appealed to. As Michigan was still only a territory 
 Congress had the power to settle the matter. There 
 were important commercial interests at stake based 
 on geographical grounds. Ohio especially wished 
 the land in dispute on account of the harbor of 
 Toledo at which one terminal of the Ohio-Maumee 
 Canal was situated. Two railroads also were in 
 process of building in Michigan to terminate at 
 Toledo. In addition to the disputed territory, 
 Michigan also desired admission as a State of the 
 
 •* W. V. Way: The Facts and Historical Events oj the Toledo War 
 oj iSjj; Toledo, Ohio, 1869.— Arthur Meier Schlesinger: Basis of 
 The Ohio-Michigan Boundary Dispute in The Ohio-Michigan Boundary^ 
 Ohio, 1916, Volume I., page 59 et seq. — Anna May Soule: The 
 Southern and Western Boundaries of Michigan, in the Michigan Political 
 Science Association Publications, Volume II., page 481. 
 
THE UNITED STATES SUPREME COURT. 65 
 
 Union. The contest which began to become acute 
 in 1833 gradually became warmer, until by 1835 the 
 armed forces of the State of Ohio and the Territory 
 of Michigan faced each other. The weight of 
 power was overwhelmingly with Ohio, for not only 
 was her population much larger than that of Michi- 
 gan, but also the States of Indiana and Illinois 
 favored her contention, since if the decision was 
 against Ohio, Michigan would very possibly claim 
 that her southern frontier should be run farther 
 south than was actually the case, thereby giving 
 her land in the possession of Indiana and Illinois 
 respectively. In addition, political considerations 
 favored Ohio, as Ohio was a doubtful State, while 
 Michigan was surely in favor of the Democratic 
 Party. President Andrew Jackson told the Governor 
 of Ohio he would use the forces of the United States 
 against Ohio if she began war with Michigan, but he 
 told the Governor at the same time that he would 
 veto any act of Congress that admitted Michigan 
 as a State before the boundary question was settled. 
 In the end Michigan was admitted to the Union 
 June 15th, 1836, but the territory in dispute was 
 given by Congress to Ohio. As a quid pro quo to 
 Michigan, Congress gave her valuable mineral lands 
 in the peninsula between Lake Michigan and Lake 
 
66 A WORLD COURT IN THE LIGHT OF 
 
 Superior. The solution enacted by Congress was a 
 compromise that satisfied in the end both parties and 
 avoided bloodshed. The power arrayed against 
 Michigan was so incomparably greater than that 
 which she herself possessed that there was no 
 alternative left to her but to bow before the Act of 
 Congress which at the same time that it deprived 
 Michigan of the land she desired to the southward, 
 gave her ample territorial compensation in another 
 direction and also admitted her to statehood in 
 the Union. It was a clear case of a settlement by 
 the application of superior force without any 
 thought of appealing to a judicial Tribunal. 
 
 Only a few years before the outbreak of the Civil 
 War, a clash occurred between the United States 
 and the State of Wisconsin, when the whole country 
 was aroused for or against slavery, over the enforce- 
 ment of the Fugitive Slave Law.*® A citizen of Wis- 
 consin, Sherman M. Booth, editor of The Wisconsin 
 Free Democrat, on March nth, 1854, aided the 
 escape of a fugitive slave who was in the custody 
 of the deputy marshal of the United States Dis- 
 trict Court. Held for trial by a commissioner 
 
 *• Stephen V. Ablcman vs. Sherman M. Booth, and the United 
 States vs. Sherman M. Booth, 21 Howard i'nilcd SlaUs Supreme Court 
 Reports, 1858, page 506. 
 
THE UNITED STATES SUPREME COURT. 67 
 
 duly appointed by the United States District 
 Court for Wisconsin, Booth sought the aid of 
 the State Courts of Wisconsin, which under- 
 took to annul and set aside the action of the 
 United States District Court on the ground that 
 the Fugitive Slave Law was unconstitutional and 
 void. Eventually the local Federal Court con- 
 demned Booth. That judgment excited great 
 indignation in Wisconsin, and eventually the State 
 Supreme Court of Wisconsin for the second time 
 released Booth upon a writ of habeas corpus. In 
 March, 1857, the Supreme Court of the United 
 States took jurisdiction in the case; and in 1858 
 at the December term of the Court, reversed the 
 decision of the Supreme Court of the State of Wis- 
 consin. The Wisconsin Legislature passed a per- 
 sonal liberty law, and in 1859 they adopted a strong 
 protest against the action of the Federal Courts. 
 The people of Wisconsin then elected Booth's attor- 
 ney upon a State rights and anti-slavery platform to 
 a place upon the Supreme Court of Wisconsin. 
 Booth was arrested again in i860 by a United 
 States marshal, then rescued and subsequently 
 again arrested. Eventually the threatening conflict 
 over the slavery question growing out of the per- 
 sistent refusal of the State of Wisconsin to bow to 
 
68 A WORLD COURT IN THE LIGHT OP 
 
 the decision of the Supreme Court of the United 
 States was brought to an end by President Buchanan, 
 towards the end of his administration, pardoning 
 Booth. That action of the President of the United 
 States while it closed the incident, did not alter the 
 fact that the State of Wisconsin just on the eve of 
 the Civil War had successfully resisted the actions 
 of the United States Courts, thereby virtually flouting 
 the decision of the Federal Supreme Tribunal. 
 
 PART V. 
 
 Before the Wisconsin case had started to add 
 turmoil to the already troubled waters through 
 which the American ship of state was sailing, a 
 case at law had already been begun in one of the 
 State Courts of Missouri that, by the final decision 
 of the United States Supreme Court with which 
 that case was supposed to be ended, was to insure 
 the outbreak of the Civil War within the country. 
 
 It was in December, 1855, that the case of Drcd 
 Scott was brought to the bar of the Supreme Court 
 of the United States of America. It was the most 
 important case yet brought to that great Court 
 for settlement. That case in its bearings and ramifi- 
 
THE UNITED STATES SUPREME COURT. 69 
 
 cations went to the very heart of what had been for 
 two generations the dominating poUtical question 
 of the North American Union — the slavery question. 
 When the Constitution was framed the differ- 
 ences of interest of the thirteen original States 
 resulted in several compromises. Thus while the 
 representation in the lower house of Congress was 
 to be based upon the number of the poptdation of 
 each State, the representation in the upper house 
 was to be two Senators from each State, ambassadors 
 as they have been termed, representing sovereign 
 commonwealths. Another compromise was made 
 concerning the possession of the unsettled lands 
 lying to the west of Pennsylvania and north of 
 the Ohio River, which only some of the thirteen 
 States possessed. It was agreed that the new 
 Federal Government should hold the northwestern 
 lands for the common good of all, so that the moneys 
 obtained from the sale of those lands could be used 
 to lighten the burdens incurred in waging the war 
 for independence as well by the States which did 
 not possess lands to the westward as those that did. 
 A third subject that could only be arranged by 
 compromise was the question of slavery. By 1787 
 it was clear that, owing to climatic conditions, 
 economically the interests of the Northern and the 
 
 / 
 
70 A WORLD COl'RT IN THE LIGHT OF 
 
 Southern States in regard to slavery were not the 
 same. And so provision was made that slavery 
 should not be disturbed where it then existed. 
 Further it was arranged that the Northwest Terri- 
 tory, that is the territory west of Pennsylvania 
 and north of the Ohio River, should be free; while 
 the land south of the Ohio River, reaching to the 
 Mississippi River, should be slave.®" In that way 
 the balance was kept evenly between the free and 
 the slave States in the movement westward of the 
 population of the original thirteen States. 
 
 In 1803, however, the United States purchased 
 for fifteen millions of dollars from Napoleon, First 
 Consul of France, the great territory of Louisiana. 
 There existed no definite provision at the time the 
 purchase was made as to whether the new territory 
 should be wholly free or wholly slave, or if divided 
 between freedom and slavery, how that division 
 should be accomplished. After much bitterness had 
 been engendered between the free and the slave 
 sections of the country, through seventeen years of 
 political strife, the matter was solved, as it was 
 supposed at the time, by an agreement of concession 
 
 **• That was before the time of the Louisiana purchase, when the 
 western frontier of the United States was, except at the extreme north 
 and the extreme south, the Mississippi River. 
 
THE UNITED STATES SUPREME COURT. 71 
 
 on both sides. This agreement, which was made on 
 March 6th, 1820, has ever since been known as 
 the Missouri Compromise. It provided that in the 
 newly acquired territories west of the Mississippi 
 River, all the territory north of an east and west line 
 run at thirty-six degrees thirty minutes north latitude, 
 should be free territory and all the territory south of 
 that line slave territory, except that north of that line, 
 the territory of the present State of Missouri should 
 be considered as slave territory, and that Missouri 
 should be admitted as a slave State. For a time that 
 compromise served to put off what was christened 
 later by Seward as the "irrepressible" struggle be- 
 tween freedom and slavery within the American Union. 
 With the passage of time, however, as a result of 
 the efforts of the slave power to gain new lands to 
 offset the future increase of the number and power 
 of the free States towards the northwest, north 
 of thirty-six degrees thirty minutes, Texas was 
 annexed by the United States in 1845, and after war 
 with Mexico, California and New Mexico were 
 taken in 1848. And then once again, two years 
 later, just as thirty years before in 1820 by the 
 Missouri Compromise, the threatening rivalry be- 
 tween the free and the slave States was adjusted 
 by the Compromise of 1850. By the latter agree- 
 
72 A WORLD COURT IN THE LIGHT OP 
 
 mcnt, largely the work of Henry Clay, the boundaries 
 of Texas were enlarged westward at the expense of 
 New Mexico; California, whose people wished to 
 exclude slavery from their land, was admitted as 
 a free State; while in the territory of New Mexico, 
 out of which Arizona and other territories were 
 subsequently carved, the question whether slavery 
 should be established there or not was to be left to 
 the subsequent decision of its inhabitants.®' Though 
 the latitude of New Mexico placed her within the 
 area of slavery, her altitude rendered the successful 
 cultivation of cotton impossible. And it soon 
 became known slavery could not be introduced into 
 New Mexico, as slave labor could not be profitably 
 employed there. Then when the slave States 
 recognized that the new States that would be 
 added to the Union in the territories to the north 
 and west of the State of Missouri and west of the 
 State of Texas would come in in the natural course 
 of events as free States, the slave power next sought 
 to extend slavery into the Louisiana Purchase, above 
 the line of thirty-six degrees thirty minutes. And so 
 as settlers from the free States in the north and from 
 
 •' James Ford Rhodes: History of the United States from the Com- 
 promise oj iSjo, New York, 1893, Volume I., Chapters I. and II. — 
 John Bach McMastcr: A History of the People 0/ the United States, 
 New York, 191J, Volume VIII., Chapter I. 
 
THE UNITED STATES SUPREME COURT. 73 
 
 the slave States, especially Missouri, in the south, 
 moved into and settled in the virgin lands west and 
 northwest of Missouri, known as the Kansas and 
 the Nebraska territories, the struggle for mastery 
 between the free and the slave States again, about 
 1854, became acute. For whichever side won the 
 contest as to whether those two territories should 
 come in as free or slave States, woxild probably 
 gain the eventual mastery in the Union as a whole.®^ 
 In the midst of all this turmoil over the question 
 of how far northward slavery should be extended 
 within the Union, occurred the historically famous 
 case of Dred Scott. 
 
 The facts of that case briefly were these: 
 Dred Scott was a negro male slave belonging in 
 1834 to Dr. Emerson, a surgeon of the United 
 States army. In that year Dr. Emerson took 
 Dred Scott with him from the State of Missouri 
 to the military post at Rock Island in the State 
 of Illinois to which the doctor was ordered, and 
 held Dred Scott there as a slave until April or 
 May, 1836. Then Dr. Emerson was ordered to 
 
 '^ James Ford Rhodes: History of the United States from the Com- 
 promise of 1850, New York, 1893, Volvime I., Chapter V., Volume 
 II., Chapter VI. — John Bach McMaster: A Brief History of the 
 United States, 1907, page 332, et seq.: A History of the People of the 
 United States, New York, 1913, Volimie VIII., Chapters XC, XCI. 
 
74 A WORLD COURT IN THE LIGHT OF 
 
 Fort Snelling on the west bank of the Mississippi 
 River. Fort Snelling was situated within the 
 territory known as Upper Louisiana, a part of the 
 Louisiana purchase from France in 1803, and at a 
 point north of the latitude of thirty-six degrees 
 thirty minutes north latitude, and north of the 
 State of Missouri. Dred Scott remained at Fort 
 Snelling as a slave with Dr. Emerson until 1838. 
 Harriet was a female negro slave belonging in 
 
 1835 to Major Taliaferro of the United States 
 Army. That same year Major Taliaferro was 
 ordered to Fort Snelling, in the upper Louisiana 
 territory, and he took Harriet there and kept 
 her there as a slave until 1836, when he sold her as 
 a slave at Fort Snelling to Dr. Emerson, by whom 
 she was kept as a slave until 1838 at the fort. In 
 
 1836 Dred Scott and Harriet, with Dr. Emerson's 
 assent, who was their mutual master, intermarried. 
 Two children were the result of their union. The 
 elder child, Eliza, was bom on the steamer Gipsey 
 on the Mississippi River at a point north of the 
 northern line of the State of Missouri. The 
 younger child, Lizzie, was born subsequently at 
 the military post of JcfTerson Barracks, within the 
 State of Missouri. In 1S3S, Dr. Emerson took 
 Dred Scott and Harriet his wife, together with their 
 
THE UNITED STATES SUPREME COURT. 75 
 
 child Eliza from Fort Snelling to the State of 
 Missouri where they resided until the suit brought 
 by Dred Scott to obtain his freedom was insti- 
 tuted. 
 
 The case was first tried in the lower Court of 
 the State of Missouri for St. Louis County, which 
 gave its decision in favor of Dred Scott and his 
 family having become free owing to their removal 
 to the free territory above the line of thirty-six 
 degrees thirty minutes north. The case then went 
 in 1852 to the Supreme Court of the State of 
 Missouri. Basing its decision on the ground that 
 Scott's status at home, regardless of what it had 
 been elsewhere, was settled by the law of Missouri, 
 the Supreme Court of that State reversed the 
 decision of the lower State Court. Then the late 
 Dr. Emerson's widow, in order to avoid appearing 
 in Court, made over the control of Scott to the 
 executor of her husband's estate, John F. A. 
 Sanford, of New York.**^ Thereupon Scott brought 
 suit against Sanford, his new master, in 1854 in 
 the United States Circuit Court of Missouri, 
 on the ground that the latter was a citizen of 
 another State. Sanford defended the action on 
 
 *'John Bach McMaster: A History of the People of the United 
 Stales, New York, 1914, Volmne VIII., page 278. 
 
76 A WORLD COURT IN THE LIGHT OF 
 
 the ground that as Scott was a slave, he had 
 not been and could not be a citizen of the 
 United States and consequently could not sue in 
 one of their Covuts. This plea the Circuit Court 
 overruled; but it decided that the law of Missouri 
 held good and that consequently, as the highest 
 State Court of Missouri had decided Scott was a 
 slave, and it was the practice of the Federal Courts 
 to uphold the decisions of the highest State Courts 
 in such matters, Scott's status was that of a slave. 
 Upon a writ of error, Scott then appealed the 
 case to the Supreme Court of the United States. 
 It was argued at the December term, 1855; and 
 because of the grave interests to the country at 
 large involved in the case, the Court heard the 
 case reargued in the December term, 1856.** Such 
 was the importance of the case, that in addition to 
 the opinion of the Court given by Chief Justice 
 Taney, all of the other eight members of the Tri- 
 bunal also gave their separate opinions. The 
 decision of the Court held that Dred Scott was not 
 
 •* Congressional Globe, 40th Congress, 3rd Session, Appendix, page 
 211, for statement of Ashley of Ohio. — Samuel Tyler, Memoir of 
 Roger Brooke Taney, Baltimore, 1872, pages 383-384.-11^*5 of 
 James Buchanan, edited by John Bassett Moore, Philadelphia, 1910, 
 Volume X., page 106, foot-note to inaugural address. 
 
THE UNITED STATES SUPREME COURT. 77 
 
 a citizen of Missouri according to the sense or 
 meaning of the word "citizen" as used in the 
 Constitution of the United States; that conse- 
 quently for that reason the United States Circuit 
 Court had not jurisdiction of the case, and so coidd 
 not pronounce judgment upon it; that the deci- 
 sion of the Circuit Court, therefore, was reversed 
 and the suit of Dred Scott in that Cotirt shovild be 
 dismissed. That part of the opinion, therefore, by- 
 upholding the decision of the Supreme Court of 
 the State of Missouri, maintained the status of 
 Dred Scott as a slave. In that way the immediate 
 point at issue concerning Dred Scott and his family 
 as to whether they were free or slave, was settled. 
 And in the opinion of a large part of the people 
 of the country, who formed the Republican Party, 
 which had come into existence as a powerful polit- 
 ical association expressly to resist the extension of 
 slavery in the free States and free Territories, the 
 decision of the Tribunal should have ended there. 
 
 Originally, in 1855, the Court had decided to 
 avoid touching on the constitutionality of the 
 Missouri Compromise.*'^ But of the minority of 
 two justices, McLean in any case, and probably 
 
 '^George Ticknor Curtis: Memoir of Benjamin Robbins Curtis 
 Boston, 1879, Volume I., page 180. 
 
78 A WORLD COURT IN THE LIGHT OF 
 
 Curtis, determined to review in their dissenting 
 opinions the subject of negro slavery in the United 
 States from the Free-Soil side of the question." 
 McLean, whose name was before the Free-Soil 
 Convention at Buffalo in 1848, in connection with 
 the Presidential nomination, had political aspira- 
 tions for the Republican nomination for President 
 to be held in Philadelphia in 1856. In the Phila- 
 delphia convention Justice McLean received 196 
 votes as against 359 for General Fremont, who was 
 chosen as the Presidential nominee. Justice 
 McLean's intention to consider the slavery ques- 
 tion in his opinion was a cause of uneasiness to the 
 members of the Court who came from the slave 
 States. The latter were in the majority, and after 
 Buchanan's defeat of Fremont for the Presidency, 
 had distinctly the stronger position. Although the 
 members of the Court differed in opinion as to the 
 extent of their jurisdiction on the record before 
 them, yet in the end they all proceeded to review 
 the slavery question so vital to the varied interests 
 of the northern and the southern States, and gave 
 
 •* Congressional Globe, 40th Congress, 3rd Session, Appendix, page 
 211, for statement of Ashley of Ohio. — Works of James Biuluman, 
 edited by John Bassett Moore, Philadelphia, 1910, Volume X., page 
 106, foot note to inaugural address. 
 
THE UNITED STATES SUPREME COURT. 79 
 
 opinions touching the maintenance and spread of 
 slavery from various angles. Six of the nine mem- 
 bers of the Court decided that the Missouri Com- 
 promise of 1820 was not constitutional and there- 
 fore void and of no force, and consequently Dred 
 Scott and the other three members of his family 
 did not become free because of their having been 
 taken to the territory north of thirty-six degrees 
 thirty minutes. As to the contention that Dred 
 Scott became free upon being taken into the free 
 State of Illinois, the Court, in the words of its dis- 
 tinguished Chief Justice, held that as "Scott was 
 a slave when taken into the State of Illinois by his 
 owner, and was there held as such and brought 
 back in that character, his status, as free or slave, 
 depended on the laws of Missouri and not of 
 Illinois." Five of the Judges declared that slaves 
 were property, and that their status as such was 
 recognized by the Federal Constitution and that 
 they did not differ from other property. Con- 
 sequently, that the owners of slaves could take 
 their property in slaves into any of the Territories 
 of the United States and keep them there as slaves. 
 Four were of the opinion that the power granted 
 by the Constitution to Congress to make rules 
 and regulations for the territory of the United 
 
80 A WORLD COURT IN THE LIGHT OP 
 
 States did not apply to the territory acquired 
 after the ratification of the Constitution of the 
 United States. In the language of the Chief 
 Justice: "It [the Constitution] docs not speak 
 of any territory, nor of Territories, but uses 
 language which, according to its legitimate mean- 
 ing, points to a particular thing. The power is 
 given in relation only to the territory of the United 
 States — that is, to a territory of the United 
 States." In addition, three members of the Court 
 decided that the vahdity of the Ordinance of 1787, 
 prohibiting the introduction of slavery into the 
 territory north of the Ohio River and stretching 
 from Pennsylvania to the Mississippi River in the 
 west and to the great lakes in the north, ended 
 when the Confederation ceased to exist upon the 
 ratification of the Constitution and the creation of 
 the new Nation of the United States of America. 
 From the opinion of the Court, two justices dis- 
 sented. They both upheld the constitutionality of 
 the Ordinance of 1787 and the Missouri Compro- 
 mise which prevented the introduction of slavery 
 north of the Ohio River and of the line of thirty- 
 six degrees thirty minutes north to the west of the 
 State of Missouri. The net result of the judgment 
 was not only to declare that Dred Scott and his 
 
THE UNITED STATES SUPREME COURT. 81 
 
 family were still slaves, but also to practically open 
 all the free Territories and free States to the insti- 
 tution of slavery. 
 
 By this decision the Supreme Court was attempting 
 to decide in favor of the pro-slavery party the most 
 fundamental difference of policy that had divided the 
 country into two camps since before the Constitu- 
 tion was completed in 1787 for presentation to the 
 several States for ratification. In passing from the 
 ground of legal questions, whether Dred Scott was 
 still a slave after his return to Missouri, to the 
 consideration of the area of political issues, whether 
 the various compromises restricting slavery from 
 being carried north of the Ohio River and north of 
 the State of Missouri and beyond that north of 
 thirty-six degrees thirty minutes were valid, or 
 whether slavery could extend into the whole coun- 
 try, the Supreme Court was attempting to settle 
 by a judicial decision, based ostensibly upon legal 
 grounds, an economic difference of fundamental 
 importance which could only be decided by a trial 
 of actual strength. And that trial was made during 
 the four years of Civil War from 1861 to 1865 that 
 desolated a large part of the country and destroyed 
 much of its wealth and the lives of many of its 
 inhabitants. That contest of four years of war 
 
82 A WORLD COURT IN THE LIGHT OP 
 
 reversed the decision of the Federal Supreme Court 
 handed down four years before the war started. 
 
 All the machinery for arriving at a judicial 
 settlement of differences between the American 
 States had been provided for. The members of 
 the Court were protected by a life tenure; they 
 had learning, force of character, and experience. 
 And by sitting and judging together, they had 
 enhanced the judicial habit of their minds. Yet 
 when they attempted in the Dred Scott case to 
 decide a case that divided the States of the Union 
 into two fairly even bodies over a question which 
 went to the vitals of the economic life of each sec- 
 tion, the Supreme Federal Tribunal miserably failed 
 to prevent the Nation from being torn and racked 
 for four years by Civil War. More than that, that 
 high Court saw the decision, which it had arrived 
 at by an overwhelming majority of the votes of its 
 members, reversed and its findings brushed aside by 
 war. In other words, its judgment was flouted by 
 a majority alike of the States and the people. 
 
 Thus in actual practice the attempt of the 
 Supreme Court of the United States to settle in 
 peace by a judicial decision, according to the pro- 
 visions of the United States Constitution, the 
 fimdamental economic difference of interest over 
 
THE UNITED STATES SUPREME COURT. 83 
 
 slavery between the States north and those south 
 of Mason and Dixon's Line, proved a complete 
 failure. The Court had successfully settled by its 
 decisions many differences between two of the 
 States of the Union. But when it tried in the same 
 way to decide a disagreement in which all the 
 States took a deep concern and over which they 
 were divided into two large camps, with the weight 
 of numbers leaning towards the North, but with the 
 strategic advantage of geographical position with 
 the South, the Court could not compass its object. 
 And war was the only solution that remained for 
 the slavery problem. As a result of the American 
 Civil War, slavery was abolished in the United 
 States, the Nation was consolidated into a power- 
 ful member of the family of Nations, and the 
 Federal Supreme Court was able to resume the 
 even tenor of its way in settling successfully by 
 judicial decisions according to the legal evidence 
 submitted to it the differences that have occa- 
 sionally arisen since between two of the member 
 States of the Union as had been its wont from the 
 settlement of the great case of Rhode Island and 
 Providence Plantations vs. Massachusetts until the 
 Court attempted and failed to decide the slavery 
 problem in the Dred Scott case. 
 
84 A WORLD COURT IN THE LIGHT OF 
 
 PART VI. 
 
 If the foregoing course of events leading up to 
 the formation and development of the United 
 States Supreme Court are compared with the 
 efforts of the Nations to develop international 
 justice as a substitute for international war, some 
 resemblances and some differences are found. 
 
 In both the spheres of the Confederation of the 
 thirteen British North American colonies and after- 
 wards of their successor, the more modem North 
 American Union, as well as for a much longer time 
 back in the greater sphere of the world as a whole, 
 there has been a continuous, though until recently 
 slow, growing desire to substitute as far as possible 
 justice instead of armed strife in settling tho differ- 
 ences between large communities. 
 
 If the beginning and development of judicial 
 settlements in North America as a substitute for 
 war, first in the time of the colonies and afterwards 
 in the lifetime of the United States of America, is 
 compared with the beginning and development of 
 international justice in settling the differences that 
 arise between Nations, many analogous features and 
 marks of resemblance are found in the two cases. 
 
THE UNITED STATES SUPREME COURT. 85 
 
 At the time the idea of judicial justice as a way of 
 avoiding war — which had been in use among the 
 Greek City States and also in Europe during the 
 Middle Ages" — began to develop in a halting manner 
 in the North American colonies by the reference in 
 1650 of the differences existing between the Dutch 
 colony of New Netherland and the two English 
 colonies of Connecticut and New Haven to a board of 
 adjudication, the idea of international arbitration 
 as a way of settling differences between two Powers 
 or Potentates was likewise beginning again to take 
 practical shape in Europe. In the treaty of West- 
 minster in 1655 between France and England, those 
 two Powers, possibly at the instigation of Oliver 
 Cromwell, agreed that some minor differences that 
 still existed between them should be referred for 
 settlement in the first instance to a Board of Adju- 
 dication, and that body failing to settle the matters 
 in dispute, that then those troubles should be sub- 
 mitted to the Imperial Free City of Hamburg for 
 final judgment. 
 
 *^ Victor Berard: De arbilrio inter liberas Groscorum civitales, Paris, 
 1894. — W. L. Westermarm: Interstate Arbitration in Antiquity, The 
 Classical Journal, Chicago, March, 1907. — Thomas Willing Balch: 
 L'£volution de VArbitrage International, Philadelphia, 1908. — A. 
 Raeder: U Arbitrage International c/iez les Hellenes, Christiania, 191 2. 
 
86 A WORLD COURT IN THE LIGHT OF 
 
 Then the idea of a supreme judicial power to judge 
 between the English North American continental 
 colonies developed through the practice of appealing 
 the unsettled disputes which arose between those 
 colonies to the King in Council for judgment on the 
 merits of each case, and thereby prepared the ground 
 for the subsequent development of the Inter-State 
 Tribunals in the time of the Confederation of the 
 American States and the still later establishment of 
 the Federal Supreme Court. Likewise, international 
 justice as a practical means of avoiding war, from the 
 beginning it had taken in Europe in the treaty of 
 Westminster of 1655, took a step in advance, in 
 the provisions agreed on in the V., VI., and VII. 
 articles of Jay's Treaty of 1794 with Great Britain 
 to submit various outstanding differences between 
 the United States and Great Britain to boards 
 of commissioners. And later still again international 
 justice pressed forward when it blossomed out into 
 the International Court of Justice which sat at 
 Geneva in 1871-72, and by a judicial settlement 
 decided the Alabama Claims without the spilling of 
 a drop of blood. 
 
 In the Wyoming Valley, the Alabama Claims and 
 the Bering Sea Fur Seal cases, the Tribunal that 
 tried each case was appointed only to try the one 
 
THE UNITED STATES SUPREME COURT. 87 
 
 case, and in each of those instances it was con- 
 stituted ad hoc. Nevertheless, in all of those three 
 trials the Court that heard the case, whether it 
 was the Tribunal that sat at Trenton, or later the 
 one at Geneva or still later the third Court that 
 sat at Paris, in each instance was a Tribunal of 
 Justice, by whatever name it may have been desig- 
 nated at the time, that tried the single case pre- 
 sented to its individual bar, and according to the 
 evidence submitted to it gave a judgment based 
 upon the law applicable to the partictdar case it 
 had to consider. 
 
 Further, a comparison of the Inter-State Court 
 that sat at Trenton in 1782 with the International 
 Courts of Arbitration or Justice which have sat at 
 The Hague under the provisions of the First and 
 the Second Hague Peace Conferences, such as the 
 Court that tried the Casablanca Affair and the 
 Tribunal that tried the North Atlantic Fisheries 
 case, show another point of similarity in the 
 development of substituting legal justice for war 
 between sovereign communities as between the 
 member States of the American Union in the one 
 instance and between the Nations of the world in 
 the other. The Trenton Court and the more recent 
 Hague International Coiirts were all called into 
 
88 A WORLD COURT IN THE LIGHT OF 
 
 being under a general provision for the appoint- 
 ment of such Tribunals, in the one case imder the 
 ninth article of the Articles of Confederation of the 
 United States, and in the other under the pro- 
 visions of the agreements of the First and the 
 Second Hague Peace Conferences. 
 
 Consequently, in considering the possibilities of 
 developing the idea of International Tribunals set 
 up ad hoc to try individual cases arising between 
 Nations into one Supreme Court of the World, with 
 a total of, for example, fifteen judges, sitting at 
 The Hague in judgment upon the Nations of the 
 world, it is well to ponder over the road the 
 Supreme Court of the United States has had to 
 travel to reach the exalted regard in which it has 
 been held by all classes untU very recently in the 
 American Union; and also to consider the recent 
 unfavorable criticisms and political attacks that 
 have been made upon it and other American Courts 
 by a substantial section of the American people. 
 
 When the thirteen British North American 
 Colonies revolted against the mother land, they 
 became allies spontaneously through the exigencies 
 demanded by their efforts to gain and maintain by 
 means of war their independence as thirteen 
 sovereign Nations. But before the close of the 
 
THE UNITED STATES SUPREME COURT. 89 
 
 struggle they found it necessary to enter into a 
 formal written agreement, known as the Articles 
 of Confederation, in order to bind themselves with 
 one another more firmly than they were by the 
 mere fact that they were working together for the 
 common object of forcing Great Britain to acknowl- 
 edge their right to govern themselves in peace and 
 independently of her interference or control. And 
 to preclude as far as possible the possibility of the 
 newly bom thirteen members of the family of 
 Nations from falling on one another's throats, over 
 disputes concerning land, boundaries and other 
 causes, they provided a way for establishing a 
 judicial machinery for trying such cases of differ- 
 ence between the member States of the Confedera- 
 tion. They agreed that any member of the Con- 
 federation which had a cause of dispute with one 
 of her sister Commonwealths, could ask that the 
 question of difference should be submitted to a 
 judicial settlement. And before the war closed, 
 the manner for establishing an Inter-State Tri- 
 bunal as provided for by the ninth article of the 
 Articles of Confederation, was invoked by the 
 richest and probably the most powerful of the 
 States at that time, in a case against another, 
 though less powerful, member of the Confederation. 
 
90 A WORLD COURT IN THE LIGHT OF 
 
 Had the thirteen original States come into being 
 without any fear of outside attack, it is very prob- 
 able that they would not have agreed on any 
 scheme such as was evolved in the ninth article 
 of the Articles of Confederation. But the fear 
 of the power of Great Britain, against which the 
 thirteen colonies or States were battling for their 
 independence, compelled them to adjust and com- 
 pose the causes of difference between themselves 
 in peace and concord; and so they were forced 
 to seek a way by which their dissensions could 
 be settled by a series of Tribunals that would 
 decide according to the principles of justice. The 
 necessity for presenting a united and harmonious 
 front to Great Britain during the struggle for 
 political independence, and afterwards to the world 
 at large, was the sanction behind the Trenton 
 Inter-State Tribunal which judged between Penn- 
 sylvania and Connecticut in the Wyoming Valley 
 controversy. 
 
 When, by the Treaty of Paris of 1783, the 
 colonies had secured peace with Great Britain, 
 and so were at peace with all the outside world, 
 they soon found out that the loose Confedera- 
 tion in which they were bound did not hold 
 them very tightly and that there was danger 
 
THE UNITED STATES SUPREME COURT. 91 
 
 that it might break into pieces. As even united 
 they were none too strong in comparison with 
 the Eiiropean Powers of that day, the thirteen 
 Nations composing the United States of America 
 were compelled through their fear of the outside 
 world to suppress their jealousies of one another, 
 which otherwise doubtless, sooner or later, would 
 have broken up the Confederation; and to devise a 
 scheme to form a more complete and perfect union. 
 Accordingly, for that purpose, they formed and 
 agreed to the compact known as the Constitution. 
 To accomplish that object, the various States had to 
 mutually give and take of the various provisions 
 which individually they would have wished to see 
 incorporated into the Constitution. For example, 
 to meet the fear of the States of small area, who 
 feared that in the new form of government they 
 wotdd be over-ridden by the large States if the 
 members of Congress should be elected according to 
 the number of the population throughout, it was 
 agreed by the large States that in the Senate or 
 upper house, the basis of representation of the 
 States should be equal, that is, that each State should 
 be entitled to elect two Senators. In the lower 
 chamber, or House of Representatives, however, in 
 order to meet the wishes of the large States for 
 
92 A WORLD COURT IN THE LIGHT OF 
 
 representation commensurate with the number of 
 their people, the Representatives were to be elected 
 on the basis of population. And other compromises 
 to meet the demands and needs of various more or 
 less clashing interests were compassed in the creation 
 of the Constitution. In order to interpret the 
 Constitution thus elaborated, and to decide how and 
 in what manner, as a fundamental law, it held in 
 check the Legislative and the Executive depart- 
 ments of the new Federal Government which it was 
 proposed to create through the means of this Con- 
 stitution side by side with the thirteen State Govern- 
 ments then existing, it was decided to establish a 
 high and supreme Federal Court. In order to 
 insure that the new Court, so far as human attributes 
 made it possible, should be free of political bias and 
 fear, and so the more likely in all its decisions, 
 whether over matters of small import or those of the 
 gravest consequence, to reach its conclusions upon 
 strictly legal grounds and the principles of justice 
 and equity instead of compromise, it was arranged 
 that the Supreme Court of the United States, as the 
 resulting Supreme Federal Tribunal has been known 
 to all the world, should be co-equal with and abso- 
 lutely independent of the Legislative and the 
 Executive branches of the Government. There was 
 
THE UNITED STATES SUPREME COURT. 93 
 
 much opposition at the time to the creation of such 
 a Court. The fear was plain that it would impugn 
 on the sovereignty of the individual States or Nations 
 of the Confederation. 
 
 Nevertheless, the dread which the thirteen young 
 States had of the interference among them of out- 
 side Powers was greater than the jealousy that they 
 entertained of one another. The fear that they 
 entertained of other outside Nations was strong 
 and real enough to induce them to enter the pro- 
 posed new Union by accepting the Constitution. In 
 some States, such as Virginia and New York especi- 
 ally, the opposition to the Constitution was keen. 
 However, in the course of time all of the thirteen 
 States accepted it and came into the Union. And 
 where before there had been thirteen Nations joined 
 in a defensive league, one new Nation was created. 
 It was a new Nation which provided for and reqtiired 
 of its citizens a double allegiance and loyalty. For 
 the new Federal Government was placed around 
 and alongside of, not over, the original State Govern- 
 ments, with restrictions upon the sovereign powers 
 of the Federal Government, while other powers were 
 reserved to the individual State Goverrmients. 
 This was a new and unique device in the develop- 
 ment of human polity. The power to deal with 
 
94 A WORLD COURT IN THE LIGHT OF 
 
 foreign affairs, which is the supreme test of whether 
 a political organism is international or not, was 
 vested, however, entirely in the Federal Govern- 
 ment. 
 
 Great pains were taken in moulding the Consti- 
 tution to provide for the safeguarding of the 
 sovereignty of the individual thirteen States, and 
 subsequently, in the first ten amendments to the 
 Constitution additional guarantees for the preser- 
 vation of those local sovereignties were added. The 
 necessity felt at first to strengthen the Federal power 
 of the American Union by degrees led the Supreme 
 Court of the United States under the Chief Justice- 
 ship of John Marshall (i 801-1835) to build up the 
 power of the central or Federal government. And 
 more especially under the stress of outside pressure 
 caused by the contact of the United States of 
 America with the other Nations of the world, though 
 other contributory causes worked to the same end, 
 the sovereignty reserved with so much care in the 
 Constitution to the individual States has grown 
 slowly but gradually and surely less. The dimi- 
 nution of this sovereignty of the individual States 
 has not progressed at all times. At times, as for 
 example, when Roger Brooke Taney (1836- 1864) 
 presided as Chief Justice over the Supreme Court 
 
THE UNITED STATES SUPREME COURT. 95 
 
 of the country, the slow but certain march of events 
 to subordinate more and more the individual States 
 to the central Federal State has been checked — 
 always excepting the absolute control over foreign 
 relations with which the Federal Government was 
 clothed from the first — by the strict interpretation 
 put upon the Constitution by the highest Federal 
 Court. But sooner or later, the absorption by the 
 Federal Government of the functions of govern- 
 ment which were originally exercised by the indi- 
 vidual States has been resumed. Until finally, 
 with the passage of the sixteenth amendment to the 
 Constitution, which gives to the Federal Govern- 
 ment the right to impose an income tax on every 
 individual in the United States, there was conferred 
 upon the Federal Government a power of immediate 
 contact with every individual in the country which 
 eventually will enable it to destroy all but the 
 shell of the power of government and sovereignty 
 possessed originally by the individual States. As a 
 result, Pennsylvania, New York and the other 
 individual member States of the Union, will then 
 have no more sovereign power than Calvados and 
 the other departments of France, or Somersetshire 
 and the other shires of England, or Hesse-Nassau 
 and the other provinces of Prussia possess to-day. 
 
96 A WORLD COURT IN THE LIGHT OF 
 
 The gradual change that has tended slowly but surely 
 to weld the United States from a Union of States 
 into one large single State has been caused in great 
 measure by the influence exerted in countless ways, 
 both directly and indirectly, by the other Nations 
 of the world in their contact for more than a century 
 with the North American Republic. As the latter 
 Power has come into closer, more direct, and more 
 vital intercourse and interdependence with the other 
 members of the family of Nations in all parts of the 
 world, the member States of the North American 
 Union have realized, both consciously and uncon- 
 sciously, that they must draw closer together if 
 they wished to maintain their position "in the Sun." 
 
 PART VII. 
 
 Turning now from the consideration of the 
 manner in which the Supreme Court of the United 
 States has succeeded as the Tribunal of last resort 
 of the American Union in keeping, in large measure, 
 the peace between the individual States of that 
 Union, it will be valuable to consider, by the illu- 
 mination of the light of its history, how far the 
 setting up of a Supreme Court of the World is 
 
THE UNITED STATES SUPREME COURT. 97 
 
 likely to succeed as an infallible way of eliminating 
 war from the affairs of the family of Nations. 
 
 An examination of the relations of the members 
 of the family of Nations to one another shows that 
 concerning questions which do not involve the vital 
 interests of a Nation, that is legal questions, the 
 past resort to International Tribunals for settling 
 differences between the Powers gives ample assur- 
 ance that strong Nations as well as weak ones would 
 appeal their differences and submit to the Supreme 
 Court of the World, as they have submitted to the 
 decisions of International Tribunals constituted ad 
 hoc.^^ It is better, in such legal cases, for a Nation 
 to go before a Court and lose its cause, and so 
 have to give way in an honorable manner to the 
 demands of its opponent than to take the chances 
 of war, or allow the difference to smoulder and 
 lead to possible embarrassment at a future time. 
 
 It was largely, for example, because Great Britain 
 could not afford to allow the Alabama Claims to 
 develop hostility to itself in the United States if 
 
 ** John Westlake: International Law, 2nd edition, 1910, Volume I., 
 pages 300 et seq. — Lassa Oppenheim: International Law, 2nd edition, 
 1 91 2, Volume II., pages 3-5. — Amos S. Hershey: Essentials of Inter- 
 national Public Law, 191 2, page 321. — Thomas Willing Balch: Dif- 
 ferends juridiques et politiques dans les rapports des nations, Revue 
 Generale de Droit International Public, Paris, 1914, page 137. 
 
98 A WORLD COURT IN THE LIGHT OF 
 
 those claims were not satisfied, that she agreed to 
 submit them to the Geneva Tribunal. In that way 
 the honor of both Nations was safeguarded, satis- 
 faction was given to the United States for the 
 grievances under which they were chafing, and 
 opportunity was offered to promote more cordial 
 relations between the two Powers. The underlying 
 reason why British statesmen were anxious to 
 remove the cause of discontent in the United States 
 towards Great Britain by submitting the Alabama 
 Claims for a judicial decision to the Geneva Tri- 
 bunal, was the fact that there were other Powers, 
 besides those two, in the World, and Great Britain 
 wisely shaped her policy in that instance from a 
 world wide point of view. 
 
 Suppose, however, that a Supreme Court of the 
 World with a permanent or definite personnel is set 
 up at The Hague, will there be a sufficient force of 
 compulsion behind it to compel at all times all the 
 Nations to submit to that august Tribunal all the 
 disputes arising between two or more Nations that 
 those Nations are not able to settle themselves by 
 diplomatic means? 
 
 The advocates of a Supreme Court of the World 
 — composed of a small number of jurists, with 
 irrevocable life appointments, some of whom, per- 
 
THE UNITED STATES SUPREME COURT. 99 
 
 haps all, would be sitting constantly at The Hague 
 — have great hopes that from the breasts of such 
 judges all national prejudices would be eliminated 
 in the judgments they would hand down in such a 
 Tribunal. And the advocates of such a Court 
 further argue that because of the permanency of 
 the judges in contradistinction with the temporary 
 status of the members of an International Tribunal 
 named ad hoc to try a single case, or series of similar 
 cases, such a Court would hand down only judicial 
 decisions, and that as a further result the Nations 
 would have far greater faith in the rendering of 
 judicial judgments instead of diplomatic compro- 
 mises by such a Supreme Court of the World than 
 they could have in International Courts set up 
 ad hoc. 
 
 In the instructions given to the American dele- 
 gation to the Second Hague Peace Conference in 
 1907, they were urged to work for the establish- 
 ment of a Supreme Court of the Nations. These 
 instructions read in part: 
 
 "If there could be a tribunal which would pass 
 upon questions between Nations with the same 
 impartial and impersonal judgment that the Su- 
 preme Court of the United States gives to ques- 
 tions arising between citizens of the different States, 
 
100 A WORLD COURT IN THE LIGHT OP 
 
 or between foreign citizens and the citizens of the 
 United States, there can be no doubt that Nations 
 would be much more ready to submit their contro- 
 versies to its decision than they are now to take 
 the chances of arbitration. 
 
 "It should be your effort to bring about in the 
 Second Conference a development of The Hague 
 Tribunal into a permanent tribunal composed of 
 judges who are judicial officers and nothing else, 
 who are paid adequate salaries, who have no other 
 occupation, and who will devote their entire time 
 to the trial and decision of international causes by 
 judicial methods and under a sense of judicial 
 responsibility. These judges should be selected 
 from the different countries, that the different sys- 
 tems of law and procedure, and the principal lan- 
 guages shall be fairly represented. The court should 
 be made of such dignity, consideration and rank 
 that the best and ablest jurists would accept 
 appointment to it, and that the whole world will 
 have absolute confidence in its judgments." 
 
 In referring to the record of the Supreme Court 
 of the United States as an example by analogy of 
 how a Supreme Court of the World would work in 
 practice, there is in those instructions a funda- 
 mental omission. It is perfectly true, as the 
 
THE UNITED STATES SUPREME COURT. 101 
 
 instructions say, that the Supreme Cotirt of the 
 United States judges with absolute fairness between 
 individual citizens of different States of the Ameri- 
 can Union, or between citizens of foreign countries 
 and citizens of the United States. But in those 
 same instructions no mention is made of the unique 
 and far more important record of the United 
 States Supreme Court in judging between the 
 individual States of the Union, and especially of 
 its judgment in the Dred Scott case, a judgment in 
 which all the member States of the American Union 
 were vitally interested. 
 
 It is precisely that part of the record of the Federal 
 Supreme Court which the instructions to the Amer- 
 ican delegation of 1907 fail to mention that are the 
 essential and valuable part of the useful and honor- 
 able career of that great Court in estimating how a 
 Supreme Court of the Nations will work in actual 
 practice. The problem which a Supreme Coiut of 
 the World will have to face is altogether different 
 from that part of the record of the United States 
 Supreme Court in which it has given "impartial 
 and impersonal judgment" merely between indi- 
 vidual "citizens of the different States, or between 
 foreign citizens and the citizens of the United 
 States." The Municipal Courts of other countries 
 
102 A WORLD COURT IN THE LIGHT OP 
 
 have done as well as that. They have not only 
 judged impartially between their own citizens, but 
 also between their own citizens and foreigners. 
 Thus, for instance, since the Great War began, the 
 highest Court of Germany according to Professor 
 Philip Marshall Brown of Princeton University, 
 in judging a patent case involving the rights of a 
 Frenchman actually fighting for France, protected 
 the rights of the Frenchman.®" But that case did 
 not involve the relative power of France and Ger- 
 many i^is-h-vis of one another. 
 
 Is there any strong likelihood that a Supreme 
 Court of the World in judging between the Nations 
 would give only judicial judgments based upon 
 justice and avoid all diplomatic or political com- 
 promises so that Nations would much more readily 
 take their differences to such a Tribunal than to the 
 International Courts now established ad hoc accord- 
 ing to The Hague agreement? 
 
 To begin with, much of the unfavorable criticism 
 which has been aimed at some of the judgments 
 handed down by International Courts named ad hoc 
 has not been altogether disinterested. Certainly 
 
 "Philip Marshal! Brown: International Administration; Pro- 
 ceedings oj the American Philosophical Society, Philadelphia, 191 6, 
 Volume LV., page 316. 
 
THE UNITED STATES SUPREME COURT. 103 
 
 that may be said of the criticisms of the counsel of a 
 defeated Nation or of a Nation which has not gained 
 all that it claimed. The adverse criticism of the 
 judgment of a Court by an advocate of one side or 
 the other in the case should be taken, both as regards 
 Municipal and International Courts, cum grano salts. 
 And, indeed, many judgments handed down by 
 Municipal Tribunals could be attacked as com- 
 promises with qtiite as much accuracy and plausi- 
 bility as some of the judgments given by Interna- 
 tional Courts set up ad hoc, which some writers have 
 attacked as being compromises. 
 
 The decision of the International Court that sat 
 on the Venezuela boundary case, for example, has 
 been criticised by some jurisconsults in having leaned 
 too much towards Great Britain's contention in its 
 decision. In the opinion of other learned publicists 
 and jurisconsults, however, that decision was emi- 
 nently a judicial judgment. 
 
 The judgment in the North Atlantic Coast Fish- 
 eries case in 19 lo, however, would seem to have 
 fallen below the high plane set by the Geneva Tri- 
 bunal in 1872 and the Bering Sea Court in 1893 of 
 handing down strictly judicial judgments. For the 
 decision handed down by The Hague Court named 
 ad hoc in 19 10 to try the North American Fisheries 
 
104 A WORLD COURT IN THE LIGHT OP 
 
 case bears on its face many marks of a compromise. 
 But inasmuch as the United States of America and 
 the British Empire each had one of their nationals 
 sitting in that Court, and, when in addition the 
 fact that those two members of the Court, one an 
 American, the other a Canadian, agreed entirely in 
 the judgment handed down by the Tribunal, is 
 taken into account, together with the provisions of 
 the preliminary agreement (conipromis) which the 
 two governments negotiated to refer the case to one 
 of The Hague International Courts for settlement, 
 it would seem that the blame for the element of 
 compromise which crept into the decision should 
 rather be visited upon the two governments who 
 arranged to refer the case to one of The Hague 
 Courts than upon the members of that Court. For 
 the treaty rather gives the impression that the two 
 governments so arranged things beforehand that the 
 Court could not well avoid the element of compromise 
 entering its decision. And this seems all the more 
 likely when it is remembered that the American 
 member of the Court was a United States Federal 
 Judge, who was accordingly well accustomed in 
 co-operation with his brother judges in the United 
 States Court in which he sat, to form and hand down 
 judicial decisions, and that the representative of 
 
THE UNITED STATES SUPREME COURT. 105 
 
 the British Empire on the Court was none other than 
 the Chief Justice of Canada, also well versed in 
 judicial procedure. One of the neutral members of 
 that Hague Court would seem in the separate 
 opinion which he filed, to have been largely influenced 
 in his judgment as to the extent of the territorial 
 character of the waters of large bays by the fact that 
 at the mouth of the greatest river passing through 
 his own country and contiguous with her coast, 
 there is a bay of immense extent with an opening 
 towards the ocean of more than one hundred miles 
 in width. If, however, he had sat to hear that same 
 fisheries case, not merely in one of The Hague 
 International Tribunals appointed ad hoc to try that 
 one single case, but as a member of a continuous and 
 ever existing Tribunal, such as the Supreme Court of 
 the United States or the Cour de Cassation of 
 France, with a life appointment and with that inti- 
 mate knowledge of his fellow judges which comes 
 only from the continuous contact that results from 
 repeated and continual sitting with them on the 
 same bench to try numerous and varied causes of 
 contention, would he have been any the more free 
 from the national bias that showed itself in his 
 individual judgment? The individual judgments of 
 the Chief Justice and the Justices of the Supreme 
 
106 A WORLD COURT IN THE LIGHT OF 
 
 Court of the United States in the case of Dred 
 Scott would seem to give a negative answer to the 
 foregoing quer>'. 
 
 In the Dred Scott case, when the Federal Supreme 
 Court was wrestling with the political question 
 involved in the contest between the free and the 
 slave States, as to where and how far the institu- 
 tion of slavery should be allowed to spread, the 
 individual members of the Court were undoubtedly 
 influenced by their individual political views and 
 the section of the country from which they were 
 appointed. 
 
 Thus the Chief Justice, Taney, a Marylander — 
 and Maryland was a slave State — who had owned 
 slaves himself, whose ancestors had owned slaves, 
 and who was a strict constructionist in his view of 
 interpreting the Federal Constitution, was besides a 
 Democrat, and the Democratic Party had become 
 the pro-slavery party of the Nation. Of the other 
 five members of the Tribunal who likewise declared 
 the Missouri Compromise unconstitutional four 
 were citizens of slave States. Wayne came from 
 Georgia, Campbell from Alabama, Catron from 
 Tennessee and Daniel from Virginia, all four slave 
 States which afterwards seceded from the Union. 
 Justice Grier, the sixth member of the Court, who 
 
THE UNITED STATES SUPREME COURT. 107 
 
 voted to declare the Missouri Compromise uncon- 
 stitutional by concurring with Taney's opinion, 
 while a citizen of a free State, Pennsylvania, was a 
 Democrat in his bringing up and in his appoint- 
 ment to the bench. Pennsylvania was still at that 
 time what it had been for many years before, 
 a Democratic State, having cast in 1856 her 
 electoral vote for James Buchanan, who was 
 President of the United States when the judg- 
 ment in the Dred Scott case was handed down. 
 Indeed he was the only Pennsylvanian who 
 had reached the Presidency. Buchanan, a firm 
 defender of the slave power, repeatedly upheld, 
 before the Dred Scott case came up for trial, in his 
 speeches and public writings the constitutionality of 
 the Missoiiri Compromise, while after the United 
 States Supreme Court had pronounced in the Dred 
 Scott case that compromise unconstitutional, thereby 
 opening the territories north of thirty-six degrees 
 thirty minutes to slavery, Buchanan said not a word 
 in favor of the Missovui Compromise as had been his 
 habit years before/" On the contrary, the Presi- 
 dent, who was advised in advance of the decision 
 
 ™ The Works of James Buchanan, edited by John Bassett Moore, 
 Philadelphia, Volume IV., page 28, Volume VII., pages 386-387, 
 Volume X., page 459 et seq., Volume XI., page 11. 
 
108 A WORLD COURT IN THE LIGHT OF 
 
 of the Court by two of its members, upheld the 
 decision of the Court declaring the Missouri Com- 
 promise unconstitutional 7' And Buchanan used 
 his great influence to persuade Grier, his fellow 
 Pennsylvanian, to go on record against the consti- 
 tutionality of the Missouri Compromised^ Justice 
 Nelson who held that Dred Scott remained a slave 
 in Missouri on the ground that the State Law of 
 Missouri decided the status of Scott, but who, while 
 actually agreeing with the majority of the Court 
 that the Missouri Compromise was unconstitu- 
 tional, would not join in giving an opinion to that 
 effect, was a Democrat in politics and came from 
 New York, a free State. His opinion was in the 
 nature of a compromise decision, in that he would 
 not publicly express himself upon the question of 
 the Missouri Compromise. The two dissenting 
 members of the Tribunal were Justices McLean and 
 Curtis. The former was from Ohio, a free State, 
 was himself a Free-Soiler and in addition several 
 times was a strong candidate for the Republican 
 
 " The Works of James Buchanan, edited by John Bassett Moore, 
 Philadelphia, Volume X., pages 106, 341. 
 
 " The Works oj James Buchanan, edited by John Bassett Moore, 
 Philadelphia, Volume X., page 106. 
 
THE UNITED STATES SUPREME COURT. 109 
 
 nomination for President J^ Curtis, who came from 
 Massachusetts, a hot anti-slavery State, was a 
 Whig and owed his appointment to the bench by 
 President Fillmore to Daniel Webster, who had 
 been one of the leaders of the anti-slavery forces/* 
 
 Time has proved that Justice Nelson, who 
 belonged to the pro-slavery Democratic Party, but 
 who came from the free State of New York, was the 
 wisest of all the members of the Court in that he 
 favored a decision which was a compromise. The 
 eagerness of the majority of the Tribunal after 
 Buchanan's election to the Presidency to hand 
 down a decision in favor of the expansion of slavery 
 within the Union, so far from settling the con- 
 troversy in favor of the slave power, ultimately 
 destroyed slavery where it existed under the protec- 
 tion of the Federal Constitution. For the judgment 
 of the majority declaring the Missouri Compromise 
 unconstitutional insured the Civil War. 
 
 Analyzing the reasoning in the opinions given 
 by the majority of the Court in the Dred Scott 
 case, Professor Corwin of Princeton University 
 
 '' James Ford Rhodes : History of the United States from the Com- 
 promise of i8jo, New York, 1896, Volume II., pages 179, 182, 184. 
 
 ^* James Ford Rhodes: History of the United States from the Com- 
 promise of 18 jo, New York, 1896, Volume II., page 251. 
 
110 A WORLD COURT IN THE LIGHT OF 
 
 pertinently says:^* "When, as in this case, the 
 student finds six judges arriving at precisely the 
 same result by three distinct processes of reasoning, 
 he is naturally disposed to surmise that the result 
 may possibly have induced the processes rather 
 than that the processes compelled the result, though 
 of course such surmise is not necessarily sound; 
 but when he discovers further that the processes 
 themselves were most deficient in that regard for 
 history and precedent in which judicial reasoning 
 is supposed to abound, his surmise becomes sus- 
 picion; and finally when he finds that beyond 
 reasoning defectively upon the matter before them, 
 the same judges deUberately gloss over material 
 distinctions (as for example, in this case, the dis- 
 tinction between sojourn and domicile) and ignore 
 precedents that they have themselves created (as 
 for example, in this case, the decisions regarding 
 the operation of State decisions upon questions of 
 comity) his suspicion becomes conviction. The 
 Dred Scott decision cannot be, with accuracy, 
 written down as usurpation, but it can and must 
 be written down as a gross abuse of trust by the 
 body which rendered it." 
 
 ^* Edward S. Corwin: The Doctrine oj Judicial Rtriem, Princeton, 
 1914, page 156. 
 
THE UNITED STATES SUPREME COURT. Ill 
 
 In reading the above criticism it should not be 
 forgotten that the two dissenting justices also 
 allowed political considerations to influence their 
 opinions. 
 
 With all their learning and sense of honor, the 
 members of the Court were human. And even 
 though they were protected by a life tenure in the 
 positions that they held, and, so far as human 
 ingenuity could provide, raised above and outside 
 of political parties and interest, still they were men 
 swayed by human passions. In a question which 
 went, in the consequences that would flow from 
 its solution, to the very vitals of the economic life 
 of one of the two hostile sections into which the 
 American people, as a restilt of slavery, had become 
 divided, it was impossible for the nine members 
 of the Supreme Covirt of the United States to 
 divest their individual views entirely of their 
 political and geographical sympathies. And which- 
 ever way they gave their individual judgments, 
 they were sure to be attacked by one political 
 party or the other as having violated their duty 
 and been influenced by political considerations. 
 
 So it was that all these judges, who were able and 
 capable men, with a high sense of honor, were neces- 
 sarily swayed more or less by their political training 
 
112 A WORLD COURT IN THE LIGHT OP 
 
 and sympathies in reaching the conclusions which 
 they did in the Dred Scott case. Their views were 
 hotly criticised by the political party which held 
 views opposed to their individual judgments. And 
 the majority were accused by the Republicans of 
 having exceeded their powers in the judgment at 
 which they had arrived. 
 
 Of late years, too, in the United States, not only 
 the State Courts and the lower Federal Tribunals 
 have been attacked vigorously, by certain sections 
 of the community because of the decisions that the 
 judges of those tribunals gave (until the judges have 
 been in a measure terrorized by public opinion); 
 but even the Supreme Federal Tribunal of the 
 Nation has been adversely criticised on account of 
 its decisions. So far has this movement of attack 
 of judicial decisions by the public gone in America, 
 that the recall of judicial decisions and even the 
 recall of judges have been advocated openly by men 
 of high position and distinction as well as by others 
 who knew little or nothing about what they have so 
 glibly attacked and adversely criticised. In other 
 words, the splendidly devised American Federal 
 judicial system has not been able to satisfy all public 
 opinion. 
 
 During the trial of the Dreyfus case in France 
 
THE UNITED STATES SUPREME COURT. 113 
 
 before the Cour de Cassation — the highest civil 
 tribunal of France, whose members were judges 
 assuredly learned in the law both by years of study 
 and practice on the bench — that high Court was 
 attacked as being partisan and non-judicial in its 
 decision in that celebrated case, just as years before 
 the Supreme Court of the United States was accused 
 of gross partisanship in its decision in the equally 
 celebrated Dred Scott case. Those two Courts, 
 though judicial tribunals, whose members were 
 trained judges, with life appointments, did not 
 satisfy all public opinion any more than the ad hoc 
 Hague International Courts have satisfied all people. 
 Such a Supreme Court of the World, however, as 
 the American delegation at the Second Hague 
 Peace Conference was instructed to urge upon the 
 Nations, would not be truly a Supreme Court of the 
 World, in the sense that the Supreme Court of the 
 United States of America or the Cour de Cassation 
 of France are Courts. For back of such a Supreme 
 Court of the World there would not be, any more 
 than there was back of the International Tribunals 
 which sat respectively upon the Alabama Claims 
 and the Bering Sea Fur Seal cases, the power of 
 compulsion. Just as in those two specific cases, as 
 likewise in the Venezuela and other cases referred 
 
114 A WORLD COURT IN THE LIGHT OP 
 
 to an International Court named ad hoc, the exe- 
 cution of the judgment in every case taken to such 
 a Supreme Court of the World would rest upon the 
 willingness of the contending Nations to bow before 
 and carry into execution the decree of the Court. 
 
 It is necessary not to forget, besides, that were 
 such a Supreme Court of the Nations in existence, 
 between it and the Municipal Courts of the indi- 
 vidual Nations, there would exist, just as between 
 International Tribunals named ad hoc and the 
 Municipal Courts of the individual Nations, there 
 does exist, an additional radical difference which 
 has not been often observed. In the cases arising 
 between individuals that are taken to the bar of 
 Municipal Tribunals, the judges do not have to 
 contend with their personal feelings in favor of one 
 side or the other. Practically in all cases the judges 
 do not know the litigants and the feelings of the 
 judges are not enlisted strongly for one party or the 
 other. If a case arose where the feelings of a judge 
 were deeply stirred for any cause in favor of one side 
 or the other, it would be improper for him to sit to 
 try that case. 
 
 On the contrary, when Nations appear before an 
 International Tribunal whether named ad hoc or 
 sitting permanently, the litigants are not unknown 
 
THE UNITED STATES SUPREME COURT. 115 
 
 to the individual judges. In cases between Nations, 
 the way a question at issue is decided in favor of one 
 side or the other may materially affect not only the 
 interests of the litigant Nations, but also, favorably 
 or adversely, the future status of other Nations that 
 do not appear in the case at all. And as a conse- 
 quence in pohtical cases, the feelings of the individual 
 judges of an International Tribimal, whether it be 
 merely temporary or continuous in its status, will be 
 more or less influenced by the interests of their own 
 coxmtry, according as its interests directly or in- 
 directly are more or less affected by the judgment to 
 be rendered by the Court. 
 
 In those cases where the American Federal 
 Supreme Court is called upon to judge between two 
 individual member States of the Union, the con- 
 ditions are more similar to the cases where individual 
 citizens are the contestants before it than in the 
 international cases when Nations appear as litigants 
 before an International Tribunal. Why? Because 
 when two States of the Union appear at its bar as 
 litigants upon a question which is purely a bone of 
 contention between them, not only is the power of 
 all the United States, owing in part to the pressure 
 of the outside world, behind the Cotirt to enforce its 
 judgment, but also the future safety and existence 
 
116 A WORLD COURT IN THE LIGHT OP 
 
 of neither State is really endangered by the decision. 
 The individual States of the Union are not exposed 
 to be divided up and annexed in parcels or in tola 
 to some of the other States as is the case with 
 members of the family of Nations. For between 
 two member States of the United States the ques- 
 tion of which is the stronger independently of the 
 legal merits of any controversy cannot arise. 
 
 This immunity from dismemberment and absorp- 
 tion of one member State by another within the 
 United States of America is due in part to the need 
 of all the forty-eight States which constitute the 
 Union to remain united and live in peace together 
 in order to afford a united and strong front for 
 mutual protection against the other Nations of 
 the world. The elimination of the danger of absorp- 
 tion of one member State of the Union by another 
 in contradistinction with the desire of members of 
 the family of Nations to conquer and absorb another 
 Nation, is due in part also to the fact that within 
 all the bounds of the United States of America 
 there is entire freedom of trade and migration, 
 while between the members of the family of Nations 
 there is restriction of trade and some restriction of 
 migration. Consequently, the individual State pre- 
 judices of each member of the American Federal 
 
THE UNITED STATES SUPREME COURT. 117 
 
 Supreme Court are not as strongly aroused, except 
 in instances like the Dred Scott case, as are the 
 national prejudices of the judges of International 
 Courts in all cases which affect the relative power 
 and influence of Nations. 
 
 * In those cases between sovereign Nations, upon 
 whose solution depends the futvu-e power of one or 
 more of the litigant Nations, and possibly of other 
 Nations not directly parties to the controversy, 
 there is no more reason to expect the elimination of 
 the nationalistic feeling of the individual judges, 
 whether nationals of the contestants or not, than 
 it was possible for the individual members of the 
 Supreme Covirt of the United States of America to 
 eliminate their political feelings in the Dred Scott 
 case, in which was involved the fundamental political 
 question of whether the free or the slave States of 
 the North American Union should ultimately win the 
 ascendency in the country. And consequently, in 
 sitting upon such cases, every judge of a Supreme 
 Court of the World would in some degree be influ- 
 enced, in the present organization of the family of 
 Nations, by the interests of his own country. 
 
 Commenting on international questions which 
 might arise involving matters concerning a Nation 
 itself as an integral entity, the Marquis of Salisbury, 
 
118 A WORLD COURT IN THE LIGHT OF 
 
 Prime Minister of Great Britain, in a dispatch 
 addressed in March, 1896, to Sir Julian Pauncefote, 
 the British Ambassador, in Washington, said with 
 pungent force :^® 
 
 "If the matter in controversy is important, so 
 that defeat is a serious blow to the credit or the 
 power of the litigant who is worsted, that interest 
 becomes a more or less keen partisanship. Accord- 
 ing to their sympathies, men wish for the victory 
 of one side or another. 
 
 "Such conflicting sympathies interfere most for- 
 midably with the choice of an impartial arbitrator. 
 It would be too invidious to specify the various 
 forms of bias by which, in any important con- 
 troversy between two great powers, the other 
 members of the commonwealth of Nations are 
 visibly afifected. In the existing condition of inter- 
 national sentiment, each great power could point to 
 Nations whose admission to any jury by whom 
 its interests were to be tried, it would be bound to 
 challenge; and in a litigation between two great 
 powers the rival challenges would pretty well 
 exhaust the catalogue of the Nations from whom 
 competent and suitable arbiters could be drawn," 
 
 ^•john Bassett Moore: International Arbitrations to which the 
 United States has been a parly, Washington, 1898, Volume I., page 964. 
 
THE UNITED STATES SUPREME COURT. 119 
 
 Men who will at all times rise above their per- 
 sonal feelings and always try to find in their con- 
 science the right thing to do, and then do it regard- 
 less of consequences to themselves, are rare, extremely 
 rare. It is only such men, however — and how few 
 and far between such men are, history tells us 
 only too well — that could be depended upon at all 
 times, whether sitting in an International Tribunal 
 named ad hoc or a Supreme Court of the Nations, 
 to avoid, in judging between the Nations, all ele- 
 ments of an opportunistic compromise and to strive 
 honestly to give only a judicial judgment. A man 
 of that type means the embodiment of the highest 
 kind of courage. But woidd even a man of that 
 high and noble stamp of character, deliberately 
 decide in favor of what he believed would eventually 
 destroy or seriously weaken and impair the power 
 of his own country at the council board of the 
 Nations? The individual judgments in the Dred 
 Scott case seem to answer "no." 
 
 Supposing, however, that all the members of the 
 family of Nations agree in setting up such a Supreme 
 Court of the World, it should not be forgotten that 
 there will be no force outside of the family of 
 Nations compelling them to bow to the judgments 
 of such a Tribunal. In that essential respect a 
 
120 A WORLD COURT IN THE LIGHT OP 
 
 Supreme Court of the World would differ radically 
 from the Supreme Court of the United States of 
 America. For at all times since the North Ameri- 
 can English-speaking colonies declared their inde- 
 pendence, the member States of the United States 
 of America, whether in the time of the Confedera- 
 tion or in that of the Union have had the con- 
 sciousness of the existence of the powers of the rest 
 of the outside world to induce the member States 
 of the United States of America to bow in the begin- 
 ning before the judgment of the Trenton Inter- 
 State Court and afterwards before the judgments 
 of the Federal Supreme Court. And yet when the 
 States of that Union were divided into two camps 
 of almost equal power that differed radically over an 
 economic question which went to the core of the 
 well-being of the Nation, the existence of that great 
 outside force represented by the other Nations of 
 the world, could not induce the member States of 
 the North American Union to refrain from taking 
 up arms. Regardless of the judicial judgment of 
 the Federal Supreme Court about the slavery ques- 
 tion, the two groups of States went to war. And 
 it took four years of bloody and costly civil strife 
 to decide which was the stronger. 
 
 After the judgment of the Court had been 
 
THE UNITED STATES SUPREME COURT. 121 
 
 reversed by civil war, and slavery abolished in all 
 the Union, the individual member States of the 
 Union have once more bowed again and again to the 
 judgments of the Federal Supreme Court. But if 
 the Supreme Court of the United States could not 
 by a judgment avoid a civil war within the North 
 American Union over a political question upon 
 which the member States were divided into two 
 fairly equal groups, is it likely that a Supreme 
 Court of the World will by its judgments be able to 
 compass in peace the political quarrels dividing the 
 powers of the world into two fairly equal groups ? For 
 in the latter case there will not be any force outside 
 of the Nations of the world to restrain them from 
 going to war as was the case in 1861 for the member 
 States of the North American Union, who neverthe- 
 less, in spite of the fact that there were many great 
 and powerful Nations outside of the United States 
 jealous of the power and success of the Union, resorted 
 to war to settle a fundamentally important economic 
 question of difference upon the opposing sides of 
 which the member States of the Union had aligned 
 themselves in two almost equally powerful groups. 
 
 Or to take an actual instance from the present 
 politics of the world. To-day the Great War which 
 is raging in Europe, raises the question: — If a 
 
122 A WORLD COURT IN THE LIGHT OP 
 
 Supreme Court of the World always in being, com- 
 posed of fifteen judges appointed for life, had been 
 sitting at The Hague in June and July, 19 14, would 
 the existence of such a Tribunal have prevented the 
 war any more than did the existence of the actual 
 machinery for calling into being an International 
 Court at The Hague for a single case? The Nations 
 of Europe failed in this instance, even after Presi- 
 dent Wilson had offered his good offices by way of 
 mediation, to avail themselves of the present facilities 
 for submitting disputes between Nations to the judg- 
 ment of an international judicial Court, appointed 
 to sit at the Dutch Capital to judge the one single 
 case for which each individual international Tribunal 
 is imder the present Hague conventions called into 
 existence. If a small permanent Court — composed 
 for example of fifteen judges — had been constantly 
 in being at The Hague to judge all manner of cases of 
 dispute arising between Nations, would the Nations 
 of Europe have called upon the permanent Tribunal 
 to settle the causes leading to the present war? 
 
 In view of the deep antagonisms existing between 
 the Teutons and the Slavs in the east of Europe, 
 between the Teutons and the French in the west of 
 Europe, between Germany and Great Britain through 
 the jealousy for commercial supremacy aroused by 
 
THE UNITED STATES SUPREME COURT. 123 
 
 the keen competition for over-sea commerce and 
 other deep lying causes stretching far back in the 
 historic development of Europe, it is hard to believe 
 that a Supreme Court of the World could have com- 
 posed the quarrel of the European Nations in 1914 
 any better than the actual present international 
 judicial machinery provided for by the Second 
 Hague Peace Conference could have done it, had the 
 Nations appealed to one of The Hague International 
 Courts named ad hoc. For no more than one of The 
 Hague ad hoc Tribunals could a Supreme Court of 
 the Nations have decided which group of Nations 
 was the stronger, and so entitled to appropriate for 
 itself the lion's share of the commerce of the world. 
 That decision is now being sought in trial by battle. 
 It would seem then, that, in the final analysis, 
 the only way a Supreme Court of the World could 
 force individual Nations to bow before its decisions 
 in all cases, would be the development of an inter- 
 national executive with sufficient power at its com- 
 mand to enforce the decisions of that Supreme Court 
 of the World, just as behind the Supreme Covirt of 
 the United States of America has stood, always 
 excepting in the Dred Scott case, the overwhelming 
 power of the Nation as against any one single member 
 State of the North American Union. 
 
124 A WORLD COURT IN THE LIGHT OP 
 
 PART VIII. 
 
 Is there any force, however, to urge the family 
 of Nations to form and enter into a world wide 
 organization established for the purpose of elimi- 
 nating war as the ultimate manner of settling their 
 serious disagreements, and to replace war by the 
 application of the rules of the Law between Nations 
 as interpreted by a Supreme Court of the World 
 seeking to award justice? Evidently there is no 
 force or power outside of the family of Nations to 
 compel them to form such a world confederation with 
 the aim of preventing any member Nation from 
 breaking out into war. 
 
 If there is no force outside all the Nations of the 
 world compelling them to hold the peace among 
 themselves comparable with the force representing 
 the Nations of the world outside of the North 
 American Union, which compelled the individual 
 States of that Union to gradually unite into the 
 single Nation of to-day and finally to bow before the 
 decisions of the Supreme Court of the United States, 
 it should not be forgotten that taere is, however, 
 within the Nations of the world themselves, a force 
 driving toward peace. This force arises from the 
 
THE UNITED STATES SUPREME COURT. 125 
 
 fact that the destruction of Hfe and wealth wrought 
 by modem war as well as the destruction of wealth 
 caused by the preparation in times of peace for war 
 is so tremendous that immense sviifering both im- 
 mediate and for the future are thereby inflicted upon 
 the inhabitants of the belligerent Nations, and in- 
 directly in many cases upon the neutrals. As with 
 the opening of the present century the people have 
 come to realize better the sufferings imposed by war, 
 they have dreaded more and more the outbreak of 
 war, and have become by degrees less belligerent in 
 their passions. In addition, owing to the inter- 
 locking more and more of the commerce of each 
 Nation directly or indirectly with that of other 
 Nations the world over, the bill for the wealth 
 destroyed now by war must eventually be paid in a 
 more or less degree by every Nation, even by the 
 neutrals. For if the belligerent States become 
 impoverished and bankrupt by war, they are in no 
 condition afterwards to trade with those that remain 
 neutral to the same extent that they did before the 
 beginning of hostilities. And, though a Nation may 
 remain at peace and neutral during a war, still, if its 
 best customers are impoverished by war the neutral 
 Nations must suffer in the long run owing to the 
 inability of its former good customers to continue 
 
126 A WORLD COURT IN THE LIGHT OP 
 
 trading with the Neutral powers on the same scale 
 as before the war. The gradual realization that the 
 struggle for life is made more difficult for the sur- 
 viving mass of humanity as a result of the destruction 
 of wealth by war will strengthen the desire of man- 
 kind to eliminate war, as far as possible, by a refer- 
 ence, whenever it is possible, of international differ- 
 ences to judicial settlements instead of an appeal to 
 arms. 
 
 One important factor helping the desire for the 
 elimination of war, is the increasing realization of 
 the people that war, among other effects, causes a 
 serious impairment to the well being of the human 
 race through the premature destruction of the 
 young men of superior physical and mental attain- 
 ments, for it is they who are naturally sent to the 
 front while the weak and feeble in both mind and 
 body are more likely to be left at home. In that 
 respect, war reverses for humanity the processes by 
 which the human race seeks to improve the breed of 
 horses, cattle and other domesticated animals. 
 Thus, for instance, on every stock farm stallions, 
 who are chosen with great care from among their 
 fellows expressly because they are possessed of 
 superior physical qualities over the average run of 
 stallions, are kept solely for the object of serving the 
 
THE UNITED STATES SUPREME COURT. 127 
 
 brood mares for the purposes of breeding. Not 
 only are these stallions chosen because of their fine 
 physical attributes to serve the brood mares, but 
 also the greatest care is taken in choosing the mares 
 which are best fitted to be given to each individual 
 stallion for the purpose of the reproduction of their 
 species. In that way the race of the noble horse, 
 who has labored so long and well for mankind, has 
 been kept up and improved. In the case of human- 
 ity, however, the men best suited physically and 
 mentally to marry and father the next generation 
 are, nattirally, in war times, the first to be sent to 
 the front, while the weaklings are the last to go. 
 Consequently, a greater proportion of the children 
 of the next generation are fathered by men of less 
 desirable physical and mental types than usual, and 
 some of the impairment of power of these weaklings 
 is transmitted to their children, no matter how 
 superior physically and mentally may be the woman 
 with whom they each individually mate. 
 
 The desire to avoid war, because of the fear of 
 the loss of life and the destruction of property and 
 the waste of labor that result from war, is not a 
 sufficiently strong force to cause Nations in all 
 cases of difference to resort to international judicial 
 proceedings rather than to war to settle their 
 
128 A WORLD COURT IN THE LIGHT OF 
 
 disputes. The desire to possess what others already 
 have in many instances is so strong as to lead to a 
 trial by battle to find out which side is the stronger. 
 The experience to be found in the history of 
 humanity would seem to show that if all war 
 between Nations is to be avoided, then some inter- 
 national or supemational force must be devised 
 which will compel Nations to take their diflferences 
 into International Courts, or the International 
 Supreme Court of the possible future, just as within 
 Nations a force has been devised which compels 
 individuals to take their disputes into Municipal 
 Courts. If it was not for the power of the sheriff, 
 with all the power of the State looming up behind 
 him, how many individuals would refuse to appear 
 before Municipal Courts who now quietly obey the 
 summons to appear before the Municipal Tribunals. 
 And in questions which affect the vital interests of 
 Nations, it may be expected that the Nations will 
 not go into Court to settle such questions unless 
 there is a force sufficiently strong to compel them. 
 In what way is the upbuilding of some general 
 international organization of sufficient force and 
 power to compel all members of the family of 
 Nations to desist from war and submit all their 
 differences, both legal and political, to one of the 
 
THE UNITED STATES SUPREME COURT. 129 
 
 International Courts named ad hoc at The Hague, 
 or to a Supreme Court of the World most likely 
 to be expected or attained? 
 
 To successfully establish at The Hague a 
 Supreme Court of the Nations of the world, 
 modeled upon the Supreme Court of the United 
 States of America, to settle the differences of the 
 Nations, involves a problem different in many 
 respects from that which confronted the thirteen 
 American States when they originated and set up 
 their present Federal Supreme Tribunal. In the 
 original thirteen American States, with a local 
 exception in part of Pennsylvania, the people of 
 all the States spoke, with slight variations, the 
 same English language; and a common tongue is 
 perhaps the most important basis of nationality. 
 And these thirteen States were drawn closer to 
 one another and impelled to join together because 
 of their fear of the outside world. The Nations of 
 the world, unlike the original thirteen North 
 American States, do not speak one language, but 
 on the contrary, speak even more tongues than 
 there are separate and individual Powers in the 
 world. And the Nations of the world are not driven 
 by fear of a power or force outside of their circle 
 into a common union whose individual members 
 
130 A WORLD COURT IN THE LIGHT OP 
 
 shall submit their diflferences to a Supreme Court 
 of the World, in the same way that the member 
 States of the Confederation of the United States 
 of America were compelled, by the fear of the 
 outside world, to join together more closely and 
 agree to submit their discords or quarrels to the 
 Supreme Court of the United States. 
 
 The teaching of the past efforts of humanity to 
 minimize or eliminate war from the politics of the 
 world show that this cannot be accomplished in the 
 international sphere of the family of Nations by one 
 master stroke of statecraft, but that that aim can 
 only be attained, if it is attainable, by the slow and 
 gradual processes of evolution." All attempts up 
 to now to devise some scheme or plan to altogether 
 eliminate the scourge of war from human affairs have 
 failed, just as all efforts so far to stamp out consump- 
 tion and cancer have failed. But on many single 
 occasions, war has been avoided by substituting for 
 war an appeal to judicial proceedings. In such cases, 
 however, no attempt was made to eliminate all war 
 
 "Thomas Willing Balch: L' Evolution de l' Arbitrage International 
 Revue de Droit International el de Legislation ComfiarSe, Brussels, 
 1908, also reprinted in book form at Philadelphia, 1908. — John Bassctl 
 Moore: The Peace Problem: Columbia University Quarterly, June, 
 1916. 
 
THE UNITED STATES SUPREME COURT. 131 
 
 for all time from human affairs. Consequently, 
 obedient to the natural law of evolution, in our 
 efforts to replace international war as much as 
 possible by international justice as the final judge 
 between Nations, we should seek to advance the 
 cause of international justice step by step rather 
 than hastily and prematurely to establish a world 
 confederation with a Supreme Court of the World. 
 Such a Supreme Tribunal of the Nations would at 
 present lack behind it that overwhelming power to 
 enforce its decisions which is found personified back 
 of the judgments of Municipal Tribunals in all the 
 power and force of that particular Nation of which 
 each individual Municipal Court forms a part. 
 
 As a consequence such a Tribunal, just as the 
 International Tribunals now instituted ad hoc under 
 The Hague agreements, practically could only deal 
 with legal cases, that is those cases which, because 
 no vital interests of Nations were at stake, the 
 Nations would be willing of their own accord to 
 bring to its bar. 
 
 It may be perhaps that through the assembling at 
 recurring intervals of Peace Congresses at The 
 Hague, such as those of 1899 and 1907, some- 
 thing like a Parliament of the Nations will be 
 developed gradually in time; that the present pro- 
 
132 A WORLD COURT IN THE LIGHT OP 
 
 visions for the erection of International Tribunals 
 ad hoc will be successfully elaborated into a Supreme 
 Court of the World, just as the Inter-State Courts 
 provided for in the ninth article of the Articles of 
 Confederation of the United States of America were 
 subsequently developed into the Supreme Court of 
 the United States; and also that an international 
 executive with some power at its disposal to enforce 
 its will, will eventually, by degrees, be born. In 
 that way, if so much is once successfully accom- 
 plished, the family of Nations would be on the high 
 road to a loosely formed world confederation. 
 
 That would reverse the process in which the period 
 of civilization immediately preceding our own period 
 of civilization reached in its old age — through the 
 conquest of the then known world by the Roman 
 Empire, and the consequent extension of the Pax 
 Romana wherever the power of Roman arms 
 extended — a semblance of world peace. 
 
 It should not be forgotten, however, that after 
 the great summer of the Roman civilization had 
 closed, there succeeded a long winter of more than 
 four centuries, before our own summer of civiliza- 
 tion began. As a number of successive civilizations 
 have been bom and died in the past, it is altogether 
 likely that our Heavenly Father in his own good 
 

 THE UNITED STATES SUPREME COURT. 133 
 
 time — when our own period of civilization has been 
 sufficiently benumbed by the socialistic status which 
 seems to be growing up within our own civilization, 
 as socialism though not known by that name grew 
 towards the close of the Roman period — ^will pro- 
 vide once more, as so many times before, the Bar- 
 barians to end the present summer of civilization 
 and begin the next great winter that must precede 
 the birth of the next period of civilization.^^ It is 
 well in dealing with such problems to remember 
 the wise words of the Emperor Marcus Aurelius, 
 d propos of his signet ring: "This, too, will pass 
 away." 
 
 So in striving to maintain peace among the 
 Nations by the application of international justice 
 to settle the quarrels of the Nations instead of by 
 bloody and destructive war, let us remain practical 
 in our aims instead of being led by visions and 
 dreams to possible disappointment. 
 
 ^*W. M. Flinders Petrie: The Revolutions oj Civilization, igii. 
 
134 A WORLD COURT IN THE LIGHT OP 
 
 PART IX. 
 
 Both the success and failure of the Supreme 
 Court of the United States of America in preventing 
 civil war within the United States would seem to 
 warn that too much should not be expected in the 
 matter of eliminating war between Nations by any 
 sudden change in the present method of creating 
 International Judicial Tribunals ad hoc into a per- 
 manent Supreme Court of the World composed of 
 a small number of judges actually representing in 
 their own persons only a small number of Nations. 
 If such a Tribunal is really to help in keeping by 
 its decisions peace among the Nations when political 
 disputes arise, something else besides the setting up 
 of such a Court must be devised and developed by 
 the family of Nations. To find that something 
 will be no easy task. 
 
 In the affairs of Nations, as in other spheres of 
 action on and in our planet, the forces of dynamics 
 must never be lost sight of. While all sovereign 
 Nations are theoretically and juridically equal, and 
 count the one as much as another in deciding the 
 development of International Law and the manner 
 
THE UNITED STATES SUPREME COURT. 135 
 
 of its interpretation/® nevertheless, some, owing to 
 a variety of reasons, are actually stronger than 
 others in shaping the politics of the world. And 
 the relative strength of the Nations to one another, 
 obeying a universal law of nature, are in a con- 
 tinuous state of flux. Some of the strong Powers 
 of a half century ago have lost part of their pre-emi- 
 nence, while others that were then comparatively 
 unheard of, have not only gained in prestige, but 
 because of their practically untouched virgin 
 resources, give promise of rising still higher in the 
 councils of the world. Also other Nations, which, 
 in past centuries, were strong Powers and had fallen 
 behind in the race of the Nations because they had 
 exhausted their available resources and failed to 
 adapt themselves to the change wrought in the world 
 by the new discoveries of mankind, seem after lying 
 fallow for a time to be rejuvenated by a new birth. 
 While history shows conclusively that the appli- 
 cation of international justice as a means of settling 
 
 ^* Emerich de Vattel : Le droit des gens; ou, principes de la loi natur- 
 elle, Amsterdam, 1775, Preliminaires, Sec. 18: "Una petitere publique 
 n'est pas moins im Etat souverain que le plus puissant royaume." 
 Chief Justice Marshall in The Antelope, 10 Wheaton, United States 
 Supreme Court Reports, 1825, page 122 said: "No principle of general 
 law is more universally acknowledged than the perfect equality of 
 Nations. Russia and Geneva have equal rights." 
 
136 A WORLD COURT IN THE LIGHT OP 
 
 the quarrels of Nations has proved itself often a 
 successful and precious instrument to avoid war, 
 nevertheless, ever since the judicial settlement of 
 the Alabama Claims in 1872 by the Geneva Tribunal, 
 it has become more and more clear with every case 
 of difficulty between Nations that has been decided 
 since that time either by an International Court on 
 the one hand, or by war on the other hand, that the 
 disagreements which arise between Nations naturally 
 divide themselves into two great categories. 
 
 In the history of the Supreme Court of the United 
 States this same dual division of the controversies 
 that might arise between the member States of the 
 United States was observed at least as early as 1838. 
 In the case of Rhode Island and Providence Plan- 
 tation vs. Massachusetts, Justice Baldwin com- 
 mentating on the differences that could arise between 
 the member States of the Union, said they might 
 either be on the one hand of a civil or judicial nature, 
 and on the other hand, of a political character. In a 
 dissenting opinion in the same case. Chief Justice 
 Taney spoke of judicial and political cases, and 
 defined the difference between the two groups of 
 cases to which he applied those terms. To desig- 
 nate the two great divisions into which the disputes 
 arising between Nations seem naturally to divide, 
 
THE UNITED STATES SUPREME COURT. 
 
 137 
 
 the French publicists applied to them respectively 
 the terms cas juridiques and cas politiques. Among 
 English speaking international jurisconsults, West- 
 lake seems to have been the first to name these same 
 two great classes of cases into which international 
 difficulties naturally divide, respectively on the one 
 hand legal or juridical cases, and on the other hand 
 political cases. Commenting on this aspect of 
 international relations, Westlake, a profound and 
 clear thinker, has pointed out that, as is proved by 
 the submission of the Alabama Claims case to the 
 Geneva Tribunal, a great deal may be hoped for 
 from the submission of dilTerences between Nations 
 to International Courts of Justice. Then he con- 
 tinues:*" "I am hopeless of good results from general 
 treaties for arbitration, never having seen, or been 
 able to devise, any formula that can distinguish 
 with sufficient precision the cases in which it is an 
 applicable remedy from those in which it could not 
 be submitted to. We may say that it is suitable for 
 cases of a legal character, not for those of a political 
 one. And that distinction is probably intelligible 
 enough for practical pvuposes, though not precise 
 enough for a treaty." 
 
 ^"Thomas Balch: International Courts of Arbitration, 18/4, 6th 
 edition, Philadelphia, 1915, page 63. 
 
138 A WORLD COURT IN THE LIGHT OF 
 
 Professor Oppenheim, Westlake's successor in the 
 WTiewell chair of International Law in Cambridge 
 University, likewise has recognized this two-fold 
 division into which the cases of disputes between 
 Nations naturally are divided. At the same time he 
 has pointed out that it is often difficult to say where 
 one set of cases ends and the other begins.*' Among 
 American publicists, Hershey likewise has recognized 
 this two-fold division.*^ Elsewhere the present 
 writer has maintained that the fundamental differ- 
 entiation between legal or juridical cases on the one 
 hand and political cases on the other hand was, that 
 in the former class of cases the independence or 
 future political development of Nations were not 
 involved, while in the latter class they were 
 menaced.^ 
 
 *' Lassa Oppenheim: I tUernalional Law, 2nd edition, London, 
 1912, Volume II., pages 3-4. 
 
 **Amos S. Hershey: The Essentials oj Inlernational Public LOla, 
 New York, 191 2, page 321. • 
 
 "* Thomas Willing Balch : Dijfftrends juridigues et poliliques dans 
 les rapports des nations; Revue Ginerale de Droit International Public, 
 Paris, 1914, page 181. — Legal and Political International Questions 
 and the recurrence of War; a paper read before the American Philo- 
 sophical Society held at Philadelphia for the Advancement of Useful 
 Knowledge, April isth, 1916; Philadelphia, 1917, page 5; reprinted 
 from the Proceedings of the American Philosophical Society. 
 
THE UNITED STATES SUPREME COURT. 139 
 
 Humanity in its eager desire to avoid the misery- 
 entailed by war, hailed with delight the principle 
 of mediation as sanctioned by the Congress of 
 Paris in 1856, only to realize in a few years that 
 mediation would not do away with all wars. Then 
 the successful avoidance of a possibility of war 
 between the United States and Great Britain by 
 the judicial settlement by the Geneva Tribunal in 
 1871-72 of the Alabama Claims, encouraged many 
 individuals to believe that by a recourse to similar 
 International Courts named ad hoc war coiild be 
 avoided more often in the future than it had been 
 in the past. And the success attending the Inter- 
 national Courts that judged in the Bering Sea Fur 
 Seal case and other international disputes increased 
 the hope that judicial settlements would more and 
 more do away with war. Then the peoples of the 
 world acclaimed with enthusiasm the call of the 
 Emperor Nicholas the Second in 1898 to a Con- 
 ference of the Nations for the purpose of reducing 
 armaments, a result which unfortunately was not 
 accomplished. But the Conference in 1899 and its 
 successor in 1907 made provisions making it more 
 easy to call into existence International Tribunals 
 appointed ad hoc to decide between the Nations. 
 These provisions filled the world with hope and 
 
140 A WORLD COURT IN THE LIGHT OF 
 
 expectancy. For up to that time, most of the 
 pacifists, unlike the jurists, had not realized what 
 the Geneva Tribunal of 1871-72 and its successor, 
 the Paris Tribunal of 1893, had actually accom- 
 plished in solving two troublesome international 
 disputes by judicial settlements. To many of these 
 people, the suggestions presented at the two Hague 
 Conferences came as someting almost new. For 
 they had not understood that already, in several 
 cases. International Judicial Tribunals had judged 
 between the Nations. 
 
 Once more, however, the Nations have been dis- 
 illusionized by the present Great War as to the 
 possibility of avoiding all war by referring inter- 
 national disputes to International Courts named 
 ad hoc for judicial settlement. And partly as a 
 result of this new light which has at last dawned 
 on the world, much has been said and heard since 
 the present titanic struggle began, about the 
 creation of a Supreme Court of the Nations with 
 the intent of securing to humanity world peace. 
 
 In trying to build a permanent International 
 Tribunal after the manner of the Supreme Court of 
 the United States that shall judge successfully in 
 all cases between the Nations, we must not think 
 that it can be erected with its necessary adjuncts by 
 
THE UNITED STATES SUPREME COURT. 141 
 
 one Conference of the Nations, or even by one 
 generation of humanity. The establishment of such 
 a Court is an ideal that the human race may well 
 strive at all times to reach. In actual fact great 
 progress towards the realization of such a Court 
 has been already accomplished. 
 
 Indeed, the task before the Nations in setting 
 up such a Court is not unlike that presenting itself 
 to the mountaineer who wishes to climb a high but 
 apparently inaccessible mountain top. He attempts 
 to scale the peak from all possible and impossible 
 sides. From each unsuccessful attempt he learns 
 something about the problem confronting him. 
 He may spend years before he realizes his object, 
 and even in many cases he has only prepared the 
 way for a climber of a younger generation to suc- 
 ceed because of the discoveries made upon the 
 mountain itself by the climber of the older genera- 
 tion. Edward Whymper attacked the Matterhom 
 or Mont Cervin for five years before he and Michel 
 Croz found the way to the summit. Other, higher 
 and more difficult peaks, for instance Gaurisankar 
 and Kinchinjunga, still baflfle all attempts to reach 
 their summits and seemingly give no promise that 
 man will on his own feet ever attain their snow 
 clad summits. 
 
142 A WORLD COURT IN THE LIGHT OF 
 
 The practical development of mountaineering, 
 since Doctor Paccard of Chamonix found the way 
 to the summit of Mont Blanc in 1787,*^ has devel- 
 oped a set of primary rules which every first rate 
 climber knows must be observed if he wishes to 
 succeed. 
 
 The first and most important of these rules is 
 to go slowly. As the mountain climbers of Italy 
 so truly say: 
 
 Chi va piano, va sano, 
 
 Chi va sano, va lontano; 
 a truth embodied also in the well known maxim of 
 the French mountaineers: 
 
 Plus doucemenl on monte, 
 
 Plus vile on arrive an sommct. 
 Or as an Italian guide once expressed it to the writer: 
 
 Chi va forte, va a la morte. 
 An apt instance of the fact that political and 
 social developments can be accomplished only 
 gradually is shown by the slow but steady forma- 
 tion of that political and social organism which 
 to-day is the virile French Nation. One of the 
 early Kings of Paris who wished to extend his 
 territorial domains and was actually thinking of 
 
 ** Douglas W. Freshfield: The Growth of a Ugend: Paccard v. 
 BaJmal: Alpine Journal, London, 1913, Volume XXVII., page aoj. 
 
THE UNITED STATES SUPREME COURT. 143 
 
 capturing and annexing by force of arms the 
 neighboring town of Saint Denis, a short distance 
 to the north of Paris, took counsel with his leading 
 men as to the advisability of risking such a step. 
 One of his counsellors in commenting on the prop- 
 osition, said: Cest le premier pas qui coute. With 
 the addition of that little burg to the landed pos- 
 sessions of the feudal house that rtiled in early Paris, 
 began that territorial growth in the He de France, 
 round Paris as the kernel, which resulted in the course 
 of centuries in the creation of the French Nation. 
 
 At the end of the present Great War, the family 
 of Nations, realizing the immense losses caused by 
 the conflict, perhaps will feel inclined to attempt, 
 in order to avoid another such cataclysm, to estab- 
 lish at once through a Third Hague Peace Con- 
 ference some sort of nebulous world organization 
 whose aim it will be to prevent the outbreak of 
 war in the future. If such an attempt is made, 
 the plan to have any success at all, must be based 
 on the idea of doing justice to all, and not, as the 
 famous Grand dessein of Henri Quatre, of placing 
 one group of Nations in control rather than another, 
 no matter with how clever a subterfuge the attempt 
 to gain power or leadership for one Nation or group 
 of Nations may be at first disguised. 
 
144 A WORLD COURT IN THE LIGHT OP 
 
 So long as questions may arise involving in their 
 solution the independence and future political power 
 of Nations, one of the best ways to work for the 
 maintenance of peace among the Nations would 
 seem to be, while perfecting so far as possible the 
 constitution of the present International Tribunals 
 named ad hoc, to seek to eliminate so far as possible 
 the probable causes for war. Thus, for example, 
 the United States of America could give in the 
 Alaskan lisiere to the Dominion of Canada in ex- 
 change for a little land somewhere else, say the islands 
 of Campobello and Grand Manan, two narrow 
 strips of land of sufficient width to allow the building 
 of two railroads from the hinterland across the 
 lisibre to two of the fiords that bulge into the lisibre 
 with sufficient land on each fiord to allow two ports 
 to be established. In that way merchandise destined 
 for the hinterland of the Alaskan lisiere could be 
 discharged at those ports and shipped into or out 
 of the Canadian territory without being subjected in 
 any way to or delayed by the tariff duties of the 
 United States.*" Then in order to send goods by 
 way of the Pacific Ocean to the Yukon district of 
 
 ** Thomas Willing Balch: La Fronlihre Alasko-CanaJienne, Revue 
 de Droit International ct de Legislation Comparie, Brussels, 1902, 
 pages 5-23: The Alaska Frontier, Philadelphia, 1903. 
 
THE UNITED STATES SUPREME COURT. 145 
 
 Canada, it would no longer be necessary, in order to 
 avoid the payment of American customs duties, 
 to send the merchandise by way of Port Simpson. 
 It could be sent via some port more to the north, 
 like Skagway, for instance, and directly over the 
 White Pass to the Yukon Valley. 
 
 Also the Law of Neutrality could be revised in the 
 interest on the one hand of curtailing the area of 
 war once it had broken out, and on the other hand of 
 shortening so far as possible its duration. Thus if 
 all the members of the family of Nations gave their 
 adhesion to a more exact definition than now exists 
 of the rights of neutrals as well as their duties 
 vis-h-vis of belligerents, the danger of futvu^e wars 
 extending the area of conflagrations beyond the 
 limits of the original contestants would be lessened. 
 A vexatious and difficult question touching the inter- 
 course and well being of the members of the family 
 of Nations is how to insure the freedom of the seas 
 for peaceful commerce in times of war as well as in 
 times of peace. Can any plan be devised by which 
 all Nations at all times will feel secure in their over- 
 sea trade? If that could be successfully accom- 
 plished, a great stroke for the preservation of inter- 
 national peace wovild have been struck. 
 
 Above all, as was suggested many times and in 
 
146 A WORLD COURT IN THE LIGHT OP 
 
 many quarters before the Great War began, and as 
 has been repeated recently by the Pope, Benedict 
 the Fifteenth, a real effort should be made by the 
 Nations to reduce their armaments upon the basis 
 of a quid pro quo. That may be looked upon as a 
 sine qua non of any real attempt to do away with war. 
 
 It is possible that the undoubtedly increasing 
 growing desire during recent years for international 
 peace among mankind, may cause Nations who are 
 more or less contiguous and neighbors to one another, 
 even though speaking different languages, to draw, 
 owing to the fear of attack from other quarters of the 
 world, closer together in some manner so as to avoid 
 war among themselves and so the better be able 
 to resist attack from some other section of the 
 planet. 
 
 For instance, the Swiss Cantons, though speaking 
 three different languages, French, German and 
 Italian, were drawn gradually together for mutual 
 defence, owing to the fear of aggression by the 
 powerful States that had grown up all about them. 
 
 A test of the practicability of establishing a World 
 Court would be for allied Nations, as Britain, 
 France and Italy, for instance, being willing to es- 
 tablish a Supreme Court that should judge all 
 questions, political as well as legal, without ex- 
 
THE UNITED STATES SUPREME COURT. 147 
 
 ception, arising between themselves. If Nations 
 that are allies in war are not willing to agree on such 
 a Cotirt for themselves, how can all the Nations of 
 the world be expected to agree on a Covirt which 
 shall judge without reserve all questions arising be- 
 tween them? 
 
 Perhaps the world in time may become divided 
 into several distinct groups of Nations based upon 
 geographical reasons. And the members of each 
 group, because of the fear of attack of some other 
 group also formed on geographical alignment, may 
 seek to minimize and eliminate the chances and 
 causes of war possibly arising between the Nations 
 belonging to the same group. Once such a stage 
 in human polity has been reached, perhaps it may 
 be possible in the future, to arrange for some scheme 
 of world wide organization that will tend gradually 
 to reduce the recurrences of war to the minimum. 
 
148 A WORLD COURT IN THE LIGHT OF 
 
 PART X. 
 
 The great difficulty in enforcing peace throughout 
 all the world, however, is that there is no force out- 
 side of the world to drive the peoples of the earth to 
 remain united in order to avoid war among them- 
 selves. And this is true whether the peoples be 
 organized as separate Nations as at present, or 
 according to any other scheme that may be devised. 
 If the peoples of the world are once united into a 
 world confederation, or a single world State, in the 
 absence of any outside force to make it their mutual 
 interest to hold together for protection against 
 outside aggression, the desire of the peoples in 
 various parts of the earth to gain more than their 
 fair share of the fruits of the earth will, judging 
 by the past history of humanity, result in war. 
 That is the weak point in all plans for maintaining 
 world peace. All Nations, no matter with what 
 grandiloquent and honeyed phrases their aims may 
 be expressed, are essentially selfish in their foreign 
 policy. Nations do not go to war to help another 
 Nation out of regard for the latter. Nations go to 
 war solely for their own interests. So it has been in 
 the past, and so it will be in the future. Alliances 
 
THE UNITED STATES SUPREME COURT. 149 
 
 between Nations are formed upon mutual interests. 
 Thus early in the present century, Great Britain 
 and France were driven through fear of the growing 
 power of Germany into an alliance that was patent 
 to all the world. And under the stress of the menace 
 to their respective vast colonial empires resulting 
 from the growing power of Germany and the desire 
 of Germany for colonies, France and Great Britain, 
 upon the basis of give and take, rounded off, so far 
 as they could, the sharp corners that existed between 
 them. Thus, for example, France recognized Great 
 Britain's occupancy of Egypt, while Great Britain 
 supported the claims of France to the possession 
 of Morocco. And yet for centuries before that 
 France and Great Britain had been constantly 
 opposed to one another, and had fought many long 
 and bloody wars. But the danger threatened by 
 another power to the possessions of both produced 
 the entente cordiale. 
 
 As one of the greatest of living international 
 jurisconsults, Professor John Bassett Moore, has 
 aptly said, the possibilities to use force to maintain 
 peace among the Nations depends in part upon 
 public opinion or sentiment. In a letter addressed 
 to the present writer on February 9th, 19 17, the 
 distinguished professor of International Laws of 
 
150 A WORLD COURT IN THE LIGHT OP 
 
 Columbia University said:" "I am inclined to 
 think that the possibilities of force in maintaining 
 peace are often exaggerated by the omission of one 
 fundamental consideration — namely, that the avail- 
 ability of force in the long run depends on opinion 
 or sentiment. During the past century there have 
 been almost innumerable civil wars, one of the 
 greatest being that which for four years swept over 
 the United States. And yet we had a national 
 government, and under it an administration far 
 more centralized than any one now proposes to 
 estabUsh over nations. But, when the sentiment 
 of the country divided, its force likewise divided, 
 and war naturally resulted. The fundamental pro- 
 blem therefore is how to preserve unity of sentiment. 
 Let no man think that our country could not be 
 divided again if one section should seek ruthlessly 
 to impose its will upon the other in a matter regarded 
 by the latter as politically or socially vital; and in 
 such event, even though one side should again 
 subdue the other, there would nevertheless have 
 been war. Let us also remember that beyond a 
 certain point the suppression of sentiment by force 
 is tyranny." 
 
 *' This extract is printed with the approval of Professor Moore. 
 
THE UNITED STATES SUPREME COURT. 151 
 
 The illximination cast upon the evolution of inter- 
 national justice by the way in which the Supreme 
 Court of the United States was evolved ; the remark- 
 able success on the one hand of that great Court 
 in deciding between two individual member States 
 of the United States; and the failure on the other 
 hand of that same high Tribunal in attempting to 
 decide between all the member States of the North 
 American Union when they were divided into two 
 fairly and evenly balanced groups with diametrically 
 opposed interests over the slavery question — give 
 warning that the peoples shotdd not be fooled into 
 believing that by the hasty creation, after the 
 present Great War is ended, of a Supreme Court 
 of the Nations all war will be ended. That would 
 be to mislead the Nations with false hopes and 
 expectations. For the existing international judicial 
 machinery is not to-day the weak point among the 
 forces and institutions forged by the human race 
 to deliver itself from the curse of war. The crucial 
 problem with which the world must wrestle in 
 order to avoid war is more complex than the estab- 
 lishment of a Supreme Coiut of the Nations. 
 
 The real underlying problem that humanity faces 
 in seeking to eliminate war is that there are two 
 sets of primary questions constantly arising between 
 
152 A WORLD COURT IN THE LIGHT OP 
 
 two or more agglomerations of peoples. The one 
 set of such questions, no matter how they may be 
 decided in favor of one side or the other, do not 
 seriously threaten the well-being or prosperity of 
 either group of peoples who are interested in any 
 particular question. Those are legal questions, for 
 they may be settled by jural proceedings upon the 
 basis of justice, since the life and future well-being 
 in the world of neither group of people is really at 
 stake, whichever way those questions may be 
 decided. The second class of questions, however, 
 differ radically from the first or legal group of 
 differences. For upon the successfvil solution one 
 way or the other of the questions belonging to the 
 second class, there does depend the future well- 
 being of one or more of the agglomerations or 
 groups of people actually interested in the solution 
 of such questions and the resulting power and 
 ability of such groups to obtain the fruits of the 
 earth. Such questions, which are political in their 
 nature, can only be solved by force or power, which 
 in the last analysis means a resort to war. 
 
 A practical way, though, to aid in the main- 
 tenance of peace in the world, would be for future 
 Hague Peace Conferences to add to their efforts at 
 legislation, the assumption of the function of con- 
 
THE UNITED STATES SUPREME COURT. 153 
 
 ciliation. The First and the Second Hague Peace 
 Conferences in their efforts to change the Law 
 between Nations in the interest of peace and 
 harmony in the world, assixmed in a measure the 
 function of a world legislative body. The Third 
 and subsequent Conferences could take up also, 
 from time to time, the task of trying to conciliate 
 so far as possible the clashing interests of rival 
 Nations. In that manner not only would a solu- 
 tion by an appeal to war of some vexatious ques- 
 tions be avoided, but also probably through such 
 conciliation as well as the development of the 
 Law between Nations by the legislative activities 
 of future Peace Conferences at The Hague, some 
 of the questions arising between Nations which 
 to-day belong to the reakn of political questions, 
 could be transferred by degrees to the domain of 
 legal questions. 
 
 For instance in the past the use that could and 
 could not be made of neutral territory to aid belhg- 
 erents fell within the domain of political questions. 
 Since the time, however, when Jefferson inter- 
 preted Washington's neutrality proclamation of 
 1793 in a series of important state letters, the use 
 that may and may not properly be made of neutral 
 territory for the advantage of belligerents, has 
 
154 A WORLD COURT IN THE LIGHT OF 
 
 passed by degrees largely into the area of legal 
 questions. For whereas before Washington's proc- 
 lamation was issued, the status of what could and 
 could not properly be done to aid belligerents, was 
 in a state of flux, since then the rights and duties 
 of neutrals in the premises have become in large 
 measure defined by the general agreement of the 
 members of the family of Nations. 
 
 In the development of future Hague Peace Con- 
 ferences along the line of conciliating the claims of 
 rival powers, there is hope that progress in lessen- 
 ing the chances and occurrences for the outbreak 
 of war between two or more agglomerations of large 
 masses of humanity could be made and so increase 
 gradually the substitution of international justice 
 for international war. In that way there would 
 seem to be a promise of something substantial for 
 the promotion and preservation of peace, and for 
 warding off from humanity the horrors and misery 
 that accompany war. 
 
 Instead of trying to end war for all time in the 
 future by one stroke of magic by merely urging the 
 erection of a Supreme Court of the World and a 
 League of Nations to support it, the best friends of 
 peace and the most resolute opponents of war are 
 those who will teach and labor to curtail by slow 
 
THE UNITED STATES SUPREME COURT. 155 
 
 degrees the occurrences producing war. They will 
 make every effort to transfer gradually as many as 
 possible of the problems arising between Nations 
 which to-day are political questions into the realm 
 of legal questions. For the whole history of human- 
 ity teaches that those who wish to make wars less 
 frequent and peace more durable must be content 
 to proceed slowly and to attain their aims step by 
 step and not try to encompass them at one bound. 
 And above all the study of the career of the United 
 States Supreme Court teaches that there are possi- 
 bly limits in securing world peace beyond which 
 humanity may not hope to go. 
 
156 A WORLD COURT IN THE LIGHT OF 
 
 EPILOGUE. 
 
 When the present writer began shortly before 
 the breaking out of the Great War to study the 
 record of the Supreme Court of the United States, 
 it was with the view of advancing an argument in 
 favor of the early creation of a Supreme Court of 
 the Nations as the best and easiest means of insur- 
 ing peace between the members of the family of 
 Nations. As the study advanced, however, the 
 writer was forced gradually to realize that there 
 were limitations to the possibilities of securing 
 world peace by the mere establishment of such a 
 Tribunal. 
 
 Nevertheless, the author believes that much can 
 be done to make the recurrences of war less fre- 
 quent. With that object in view he submits the 
 present study in all humility to the jurists of the 
 world with the hope that it may prove of some 
 service in helping the efforts of humanity to 
 render wars less frequent and peace more durable. 
 
 THE AUTHOR. 
 
 Philadelphia, November, 19 17. 
 
INDEX. 
 
 PAGE 
 
 Ableman, Stephen V., vs. Sherman M. Booth and the United 
 
 States vs. Sherman M. Booth 66 
 
 Active, sloop 59 
 
 Adams, John 20 
 
 Aiguesmortes 2 
 
 Alabama Claims 3, 4, 45, 86, 97, 98, 113, 136, 137, 139 
 
 Alabama, vs. Georgia 46 
 
 Alaskan Boimdary 50 
 
 Alaskan lisiere 144 
 
 Anna, The 50 
 
 Arizona 72 
 
 Arnold, Welcome 24, 26 
 
 Articles of Confederation 7, 21, 22, 29, 30, 38 
 
 Ashley of Ohio 76 
 
 Aurelius, Emperor Marcus 133 
 
 Balch, Thomas 137 
 
 Balch, Thomas Willing 85, 97, 130, 138, 144 
 
 Baldwin, Justice 39, 42, 136 
 
 Baltimore, Lord 11, 12 
 
 Belligerents 153, 154 
 
 Benedict the Fifteenth 146 
 
 Berard, Victor 85 
 
 Bering Sea Fur Seal Case 4, 86-87, I03f ii3. '39 
 
 Blair, Justice 34 
 
 Blanc, Mont 142 
 
 Booth, Sherman M 66-68 
 
 Bradford, William 23, 24 
 
 Brearly, David 24, 26 
 
 Britain, Great 2, 7, 21, 103, 104, 105, 139, 146 
 
 Britain, Great, and Germany 122 
 
 Brown, Philip Marshall 102 
 
 Buchanan, James 68, 76, 78, 107-109 
 
158 INDEX. 
 
 rACx 
 California 71, 72 
 
 Campbell, Justice 106 
 
 Campbell vs. Hall II 
 
 Campobello and Grand Manan Islands 144 
 
 Canada 141, 145 
 
 Carson, Hampton L 59, 61, 62 
 
 Casablanca Affair 87 
 
 Cos juridigues 137 
 
 Cos poliltques 137 
 
 Catron, Justice 106 
 
 Cervin, Mont 141 
 
 Charles the Second 11, 14, 16, 18 
 
 Chase, Samuel 20 
 
 Chinese Empire I 
 
 Chisholm vs. Georgia 33, 35, 36 
 
 Civil War, 1861-1865 81-83, >2« 
 
 Clay, Henry 72 
 
 Columbia University 150 
 
 Compromise of 1850 71 
 
 Compromises in the Constitution 68, 91 
 
 Connecticut 7, 8, 10, 13, 15, 16, 18, 19, 21-28, 85 
 
 Continental Congress 19, 21, 23, 60, 61 
 
 Corwin, Edward S 109, 1 10 
 
 Coucy-lc-Chiteau i 
 
 Cour de Cassation of France 105, 1 13 
 
 Cromwell, Oliver 85 
 
 Croz, Michel 141 
 
 Curtis, George Ticknor 77 
 
 Curtis, Justice Benjamin Robbins 77, 78, 108, 109 
 
 Cushing, Justice 34 
 
 Daniel, Justice 106 
 
 Delaware 13 
 
 Dickinson, John 27, 32 
 
 Dred Scott case 68,73-80,83, loi, 106-109, "*. "3. >I7. "9. 123 
 
INDEX. 159 
 
 PAGE 
 
 Dreyfus case 112 
 
 Dyer, Colonel 16, 23, 25 
 
 Egle, William H II, 16, 17, 25 
 
 Eleventh Amendment to the Federal Constitution 35, 52 
 
 Entente cordiale 149 
 
 Epilogue 156 
 
 Federal Constitution 35-37 
 
 Federal Convention 13, 30, 32 
 
 Fillmore, President 109 
 
 Five Nations, the 14 
 
 Ford, Worthington C 78 
 
 France 12, 85, 95, 142, 143, 146, 149 
 
 Freedom of the seas 145 
 
 Fremont, John C 78 
 
 French and Teutons 122 
 
 Freshfield, Douglas W 142 
 
 Fuller, Chief Justice 49. 5° 
 
 Gaurisankar 141 
 
 Geneva Tribunal 3, 4, 45, 86, 87, 98, 103, 136, 137, 139, 140 
 
 Georgia 33-35 
 
 Georgia vs. Tennessee Copper Company 55 
 
 Germany 2, 149 
 
 Germany and Great Britain 122 
 
 Good offices 3 
 
 Grand dessein I43 
 
 Great War, the 102, 121, 140, 143, 146, 151, 156 
 
 Greek City-States 85 
 
 Green, Nathaniel 24 
 
 Grier, Justice 106, 108 
 
 Griffin, Cyrus 24, 26, 27 
 
 Hague Courts, the 6, 87, 102-105, 113, 122, 131 
 
 Hague Peace Conference, First, 1899 3, 4, 87, 88, 131, 139, 153 
 
160 INDEX. 
 
 PACE 
 
 Hague Peace Conference, Second, 1907. ... 4, 87, 88, 99, 100, 113, 123, 
 
 i»9. 131. 139, 153 
 
 Hague Peace Conference, Third 143 
 
 Hague Peace Conferences and Conciliation 153, 154 
 
 Hamburg, Free City of 85 
 
 Hardwickc, Lord Chancellor 13 
 
 Hazard, Ebenezer 10, 16 
 
 Hazard 41 
 
 Henri Quatre 143 
 
 Hershey, Amos S 97, 138 
 
 Higgins, A. Poarce 4 
 
 Hoadly, Charles J 10, 16 
 
 Hollingsworth et al. vs. Virginia 35 
 
 Hopkins, Stephen 31 
 
 Houston, WiUiam Churchill 34, 36 
 
 Illinois 65 
 
 Indiana 65 
 
 Indiana vs. Kentucky 47 
 
 Instructions to American delegation at the Second Hague Peace 
 
 Conference concerning a proposed World Court 99-101 
 
 International Courts of Justice 4, 86, 87, 97, 99, 102, 114, 115, 
 
 119, 128, 132, 134, 137, 139, 144 
 
 International Law, Private 56 
 
 International Law, Public 56, 134, 134, 153 
 
 Inter-State Tribunals in American Colonies 89, 132 
 
 Jackson, Andrew 65 
 
 Jay, Chief Justice 34. 36, 86 
 
 Jefferson, Thomas 20, 1 53 
 
 Johnson, Dr. William Samuel 16 
 
 Johnson, William Samuel 33, 35 
 
 Jones, Joseph 24 
 
 Judicial settlements, international 84-86 
 
INDEX. 161 
 
 PAGE 
 
 Kansas vs. Colorado 53 
 
 Keith, Charles Penrose 1 1 
 
 Kelby, George 8 
 
 Kinchinjunga 14' 
 
 King in Council lO, 1 1-13, 17-19, 22 
 
 Kings of Paris 142 
 
 Kinsey, James 20 
 
 Lake dwellers of Switzerland i 
 
 League of Nations 154 
 
 Legal Questions 97. 136-138, 152, I55 
 
 Limes Imperii Romanii i 
 
 Linn, John B 11 
 
 Louisiana vs. Mississippi 49 
 
 Louisiana purchase 70, 72, 74 
 
 Louisiana vs. Texas 55-56 
 
 Mansfield, Lord 11, 13 
 
 Marbury vs. Madison 36 
 
 Marshall, John, Chief Justice 36, 38, 40, 63, 94, 135 
 
 Maryland 11, 13 
 
 Maryland vs. West Virginia 51 
 
 Massachusetts 13, 41-43 
 
 Massachusetts vs. New York 29 
 
 Matterhom 141 
 
 McLean, Justice 44, 77, 78, 108 
 
 McMaster, John Bach 72, 75 
 
 Mediation 3 
 
 Mexico 71 
 
 Middle Ages 85 
 
 Missouri 71, 72 
 
 Missouri Compromise 71, 77, 79-81, 106-109 
 
 Missouri vs. Illinois 54 
 
 Missouri vs. Iowa 46 
 
 Missouri vs. Kansas 50 
 
162 INDEX. 
 
 rAOB 
 
 Missouri vs. Kentucky 47 
 
 Missouri vs. Nebraska 48 
 
 Montesquieu 31 
 
 Moore, John Bassett 76, 78, 107-108, 1 18, 130, 149 
 
 Municipal Courts 6 
 
 Municipal Tribunals 1 14, 128, 131 
 
 Napoleon 70 
 
 Nelson, Justice Samuel 108-109 
 
 Nelson, Thomas 31 
 
 Netherland, New 7-9, 85 
 
 Netherland, United 3, 9 
 
 Neutrality 145, 153-154 
 
 New Hampshire vs. Louisiana 51 
 
 New Haven 7-9, 85 
 
 New Jersey 15, 18-19, 39-40 
 
 New Jersey vs. New York 39-40, 61 
 
 New Mexico 71-72 
 
 New York 9, 14-15, 18-19, 28, 33, 39-40 
 
 New York vs. Connecticut 39 
 
 Nicholas the Second 3, 139 
 
 Ninth article of the Articles of Confederation 27, 88-90 
 
 North Atlantic Fisheries Case 87, 103-104 
 
 Ohio, State of, against Territory of Michigan 64, 65 
 
 Olmstcad, Gideon 59, 64 
 
 Oppenheim, Lassa 97, 138 
 
 Order in Council 13 
 
 Osbom, Henry 23 
 
 Paccard, Doctor 142 
 
 Paris, Congress of, 1856 139 
 
 Paris Tribunal, 1893 140 
 
 Parliament of Nations 131 
 
 Pauncefote, Sir Julian II8 
 
INDEX. 163 
 
 PAGE 
 
 Penn vs. Lord Baltimore 12-13 
 
 Perm, William 11, 14-16, 18 
 
 Pemis, the 12-13 
 
 Pennsylvania 11, 13-16, 18-20, 22-27, 59-63i 95i 106. 129 
 
 Pennsylvania vs. Connecticut 16, 29 
 
 Peters, Judge 62-64 
 
 Petrie, W. M. Flinders 118 
 
 Philadelphia 16-17, 28, 30, 62-63, 78 
 
 Pierrefonds I 
 
 Political Questions 136-138, 152 
 
 PoUtiques, differends 97 
 
 Princeton University 102, 109 
 
 Raeder, A 85 
 
 Randolph, Edmund Jennings 34 
 
 Reed, Joseph 23-24 
 
 Rhode Island 41-42 
 
 Rhode Island and Providence Plantations vs. Massachusetts, 
 
 40-41. 45. 83, 136 
 
 Rhodes, James Ford 72, 109 
 
 Rittenhouse, David 61, 63 
 
 Rittenhouse, Fort 63 
 
 Rogers, Judge Henry Wade 27 
 
 Roman Empire i, 132, 133 
 
 Root, Jesse 23, 25 
 
 Ross, George 20, 60-61 
 
 Rutledge, John 20, 24, 32 
 
 Salisbury, Marquis of. Premier of Great Britain 118 
 
 San Juan Frontier 50 
 
 Schlesinger, Arthur Meier 64 
 
 Scott, Dred, case, see Dred Scott. 
 
 Sergeant, Jonathan Dickinson 23-24 
 
 Sherman, Roger 18, 20 
 
 Sixteenth Amendment to the Federal Constitution 95 
 
164 INDEX. 
 
 PACE 
 
 Slavery in the United States. 69-73, 78, 83, 106-107, 109, iii, 130-131 
 
 Slaves and Teutons 122 
 
 Smith, Rev. William 17 
 
 Soule, Anna May 64 
 
 South Carolina 20, 24, 33, 35 
 
 South Carolina vs. Georgia 29 
 
 South Carolina vs. Georgia 56 
 
 South Dakota vs. South Carolina 53 
 
 Stowell, Lord 50 
 
 Strong, Jedediah 16 
 
 Stuyvesant, Peter 8 
 
 Summers and winters of civilization 132 
 
 Supreme Court of the United States 4-6, 31-33, 35-36, 38-41, 
 
 45. 50. 55. 57-58. 67-68. 81-84, 92. 94. 96. 99-101, 105-106. 109-1 12, 
 115, 117, 119-120, 124, 129-130. 136. 140. 151, 155-156. 
 Supreme Court of the World, see World Court. 
 Swiss Cantons 145 
 
 Taney. Roger Brooke 43, 76, 80, 94, 106-107, 136 
 
 Teutons and French 122 
 
 Teutons and Slaves 133 
 
 Teitas 71 
 
 Treaty of Paris, 1783 90 
 
 Treaty of Westminster. 1655 85 
 
 Trenton Inter-State Court 25, 26-.29. 87. 90, 120 
 
 Tyler, Samuel 76 
 
 United States 62 
 
 Vattel. Emerich de 48, 135 
 
 Venezuela Boundary case 103. 1 13 
 
 Venice 2 
 
 Virginia 33. 93 
 
 Virginia vs. Tennessee 48 
 
 Virginia vs. West Virginia 56. 57 
 
INDEX. 165 
 
 PAGE 
 
 Washington, George 21, 153-154 
 
 Washington vs. Oregon 50 
 
 Way, W. V 64 
 
 Wayne, Justice 106 
 
 Webster, Daniel 41, 109 
 
 Westermann, W. L 85 
 
 Westlake, John 97, 137-138 
 
 Wharton, Francis 48 
 
 Whipple, William 24 
 
 Whymper, Edward 141 
 
 Willing, Thomas 20 
 
 Wilson, James 23-24, 34 
 
 Wilson, President 122 
 
 Wisconsin 65, 67-68 
 
 Witherspoon, John 61 
 
 World Court 4-6, 88, 96-101, 113-114, 117, 119-124, 128-134, 
 
 140-141, 146, 151, 154 
 Wyoming Valley 14, 18-19, 21, 86, 90 
 
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